*   COT  7  1922   *l 


Bv  760  .Bby2  iyuj 

Boyd, 
1938 


William  Kenne 


th,  1879- 


The  ecclesi 


astical  edicts 


theTheodos^n 


code 


2 

THE  ECCLESIASTICAL  EDICTS  OF  THE 

THEODOSIAN  CODE 


[*      OCT   7  1922 


STUDIES  IN  HISTORY,  ECONOMICS  AND  PUBLIC  LAW 

EDITED   BY  THE  FACULTY  OF  POLITICAL  SCIENCE  OF 
COLUMBIA    UNIVERSITY 


Volume  XXIV] 


[Number  2 


THE  ECCLESIASTICAL  EDICTS 


THEODOSIAN  CODE 


.^ 


WILLIAM  K.  BOYD,  Ph.D. 

Sometime  Fellow  in  European  History  in  Columbia  Univeriity, 
New  York  City 


'^zm  Work 
THE   COLUMBIA   UNIVERSITY   PRESS 

THE   MACMILLAN   COMPANY,   AGENTS 
London  :  P.  S.  King  &  Son 

1905 


Copyright,  1905, 

BY 
WILLIAM  K.  BOYD 


TABLE  OF  CONTENTS 

lASE 

Preface 7 

Introduction 9 

CHAPTER  I 

The    Conflict    between    Paganism   and    Christianity,   as   it 
Appears  in  the  Code 15 

CHAPTER  II 
Heresy  and  Ecclesiastical  Institutions 33 

CHAPTER  III 
Heresy  and  Ecclesiastical  Institutions  (Continued)  ....      54 

CHAPTER  IV 

The  Relation  of  the  Church  to  the  Social  Organization  of 
THE  Empire 71 

CHAPTER  V 
The  Episcopal  Courts 87 

CHAPTER  VI 

The  Influence  of  the  Ecclesiastical    Edicts  of  the   Theo- 
dosian  Code  upon  Early  Medieval  Jurisprudence   ....    103 

Bibliography 121 

115]  5 


PREFACE 


This  monograph  has  been  prepared  as  a  dissertation  to 
complete  the  requirements  for  the  degree  of  Doctor  of 
Philosophy  in  Columbia  University.  The  subject  was  sug- 
gested by  a  discussion  in  the  seminar  of  Professor  James  H. 
Robinson  and  by  the  lectures  of  Professor  Munroe  Smith  on 
the  History  of  European  Law.  To  these  gentlemen  I  am 
indebted  for  criticisms  of  style,  and  to  Professor  Munro 
Smith  for  invaluable  aid  in  the  interpretation  of  certain 
texts.  I  am  also  under  obligation  to  Mr.  F.  W.  Erb,  of  the 
Columbia  University  Library,  for  courtesies  in  the  loan  of 
books.  William  K.  Boyd. 

Dartmouth  College,  Sept.  27,  1905. 

117]  7 


ERRATA 

Pp.  10,  1.  12,  and  p.  12,  I.  5,  read  responsa  for  responsac. 

P.  II,  last  paragraph,  after  "  so-called  Law  of  Citations,"  insert  "pub- 
lished by  Valentinian  III." 

P.  22,  1.  26,  read  "  without  the  walls  "  for  "  without  walls.'' 

P.  23,  1.  13,  read  "restored"  for  "destroyed." 

P.  49.  1.  10,  read  "  Arianism  "  for  "  paganism." 

P.  52,  1.  9,  omit  the  words  "  cast  out  and  banished "  and  the  re- 
mainder of  the  paragraph.  The  correct  reading  is :  "  We  would  order 
them  to  be  cast  out  and  banished  if  it  were  not  a  greater  penalty  for 
them  to  remain  among  men,  deprived  of  the  privileges  of  men.  How- 
ever, they  can  never  regain  their  former  condition  ;  the  shame  of  their 
evil  actions  cannot  be  obliterated  by  penance  nor  by  show  of  reparation, 
however  elaborate,  since  insincere  and  invented  excuses  are  not  able  to 
protect  those  who  pollute  the  faith  which  they  have  vowed  to  God  and, 
betraying  the  divine  mystery,  follow  after  profane  things.  While  there 
may  be  aid  for  the  lapsed  and  erring  ones,  for  the  lost,  namely,  those 
who  profane  sacred  baptism,  no  remedy  of  penance  which  is  beneficial 
to  other  criminals,  may  suffice." 

P.  76,  between  lines  3  and  4,  insert  "  who  had  become  clerks,  to  re- 
sume their  obligations  to  the  state  unless  they  had  entered." 

P.  7y,  n.  I,  read  "  vocantur  "  for  "  vacantur." 


INTRODUCTION 

The  blending-  of  civil  and  ecclesiastical  authority  in  the 
later  Roman  Empire  is  a  subject  of  vast  and  permanent 
historic  interest.  In  it  the  philosophical  historian  has  seen 
only  one  of  the  many  evidences  of  a  decline  in  classical 
civilization ;  while  the  moralist  has  found  it  to  be  the  source 
of  all  the  humane  and  beneficent  influences  of  the  age.^ 

There  is  one  phase  of  this  union  of  secular  and  religious 
forces,  the  position  of  the  church  in  the  later  Roman  law, 
which  has  never  received  comprehensive  or  judicious  treat- 
ment. For  this  neglect  the  large  number  of  edicts  on 
ecclesiastical  subjects,  their  confused  style  and  frequent  ob- 
scurity, as  well  as  the  general  unproductiveness  during  the 
fourth  and  fifth  centuries  of  those  influences  that  create  law, 
are  responsible.  But  the  subject  is  an  important  one,  and 
when  some  of  the  difficulties  are  mastered  it  has  an  at- 
traction of  its  own.  For  legislation,  as  no  other  histori- 
cal source,  reveals  the  complexity  of  good  and  evil  in  so- 
ciety, and  the  ecclesiastical  edicts  of  Constantine  and  his 
successors  show  that  the  church,  while  a  philanthropic  in- 
stitution, was  also  a  disintegrating  factor  in  Roman  civili- 
zation. Moreover  the  imperial  legislation  discloses  the 
origin  of  those  political  and  social  privileges  that  character- 
ized the  church  in  the  middle  ages,  some  of  which  survive 
in  modern  life.  The  motive  underlying  the  present  mono- 
graph has  been  the  desire  to  reach  some  appreciation  of  the 

^  Reference  is  here  made  to  Gibbon,  Decline  and  Fall  of  the  Roman 
Empire,  and  Schmidt,  Social  Aspects  of  Christianity. 

119]  9 


lO  EDICTS  OF  THE  THEODOSIAN  CODE  [120 

relationship  between  church  and  state  in  the  fourth  and  fifth 
centuries,  as  revealed  in  the  laws  of  the  emperors,  and  to 
estimate  the  influence  of  that  relationship  in  shaping  condi- 
tions in  mediaeval  Europe, 

The  source  for  our  knowledge  of  the  subject  is  the  Theo- 
dosian  code.  Since  it  was  a  product  of  the  conditions 
which  characterized  the  jurisprudence  and  culture  of  the 
later  Empire,  those  conditions  demand  some  preliminary 
examination. 

The  fourth  century  marks  an  epoch  in  the  history  of  Ro- 
man jurisprudence.  The  principal  influence  in  the  making 
of  law  in  the  Republic  had  been  the  responsae  of  the  jurists, 
given  in  reply  to  legal  questions  presented  by  public  officials. 
These  had  been  given  the  sanction  of  the  government 
through  the  ius  respondendi,  or  right  of  making  binding 
decisions,  conferred  upon  favored  jurists  by  Augustus.  The 
existing  law  courts  were  also  brought  under  the  imperial 
authority,  and,  toward  the  close  of  the  third  century,  the 
legislation  of  the  emperors  began  to  supplant  the  decisions 
of  the  jurists  as  the  supreme  source  of  justice.  Law-mak- 
ing was  thus  governmentalized ;  and  the  administration  of 
justice  was  centered  in  that  vast  bureaucracy  which  tended 
to  dominate  every  phase  of  public  life. 

The  beneficent  results  of  this  movement  were  that  the 
ancient  law  of  the  city  {ins  civile)  was  modified,  and  that 
the  antithesis  between  ius  civile  and  the  law  developed  by 
the  administrative  officials  {iiis  honorarium)  was  removed. 
Consequently  the  law  and  custom  of  Rome  and  the  pro- 
vinces were  blended  into  one  harmonious  unity.  On  the 
other  hand,  the  centralization  of  justice  resulted  in  an  un- 
fortunate increase  of  legislation.  Anything  and  everything 
from  the  fiscus,  the  court  system  and  social  problems,  to  the 
obscure  sect  of  the  Tascodrogitse  and  the  minor  issues  of 
ecclesiastical  life  were  subjects  of  imperial  edicts  and  con- 


121  ]  INTRODUCTION  II 

stitutions.  Consequently  there  was  a  distinct  decline  in  the 
knowledge  and  study  of  jurisprudence.  The  laws  were  fre- 
quently drafted  by  court  politicians  and  rhetoricians.  Their 
language  bears  evidence  of  their  authorship,  for  the  Latin 
of  the  Theodosian  code  has  not  the  simplicity  and  strength 
of  the  juristic  literature  of  the  second  and  third  centuries, 
while  the  formation  of  a  vast  administrative  system  neces- 
sarily caused  the  introduction  of  new  words  into  Roman 
legal  vocabulary. 

This  confused  condition  of  the  law,  as  well  as  a  general 
decline  in  letters,  led  Theodosius  the  Younger  (408-450) 
to  undertake  a  revival  of  Roman  culture.  To  this  end 
he  established  a  university  at  Constantinople,  whose  tone, 
positively  Christian,  should  counteract  the  influence  of  a 
similar  institution  in  Athens,  which  was  pagan  in  spirit. 
Two  of  the  chairs  in  the  new  university  were  devoted  to 
jurisprudence.  Then,  astonished  "  that  so  few  are  found 
who  are  endowed  with  a  full  knowledge  of  the  Civil  Law," 
impressed  with  the  "  enormous  multitude  of  books,  the 
diverse  modes  of  procedure  and  the  difficulty  of  legal 
cases  and  the  huge  mass  of  imperial  constitutions  which, 
hidden  as  it  were  under  a  veil  of  gross  mist  and  darkness, 
preclude  men's  intellects  from  gaining  a  knowledge  of 
them,"  Theodosius  decided  to  meet  "  a  real  need  of  the 
age  "  by  attempting  two  important  reforms.^ 

The  first  of  these  was  outlined  in  the  so-called  Law  of 
Citations.  It  designated  the  jurists  Papinian,  Paul,  Gaius, 
Ulpian  and  Modestinus  as  legal  authorities,  confirmed 
their  writings  as  sources  of  law,  and  ordered  that,  in  points 
of  conflict  between  them,  the  opinion  of  the  majority  should 
be  decisive;   if  there  were  an   equal   division   of  opinion, 

1  De  Thcodosiani  Codicis  Auctoritate,  p.  90  of  Haenel's  edition  of  the 
Theodosian  code. 


12  EDICTS  OF  THE  THEODOSIAN  CODE  [122 

Papinian  should  be  followed,  and,  in  cases  in  which  these 
writers  made  no  comment,  the  judge  might  form  an  in- 
dependent decision.  The  second  reform  was  the  codifica- 
tion of  imperial  constitutions  since  Constantino,  "  so  that 
men  may  no  longer  have  to  await  formidable  responsae  from 
expert  lawyers  as  from  an  inner  shrine."  ^ 

This  work  was  entrusted  to  two  commissions.  The  first, 
of  the  year  429,  was  composed  of  eight  noblemen  and  one 
jurist;  the  second,  which  completed  the  work,  was  composed 
of  sixteen  members  and  was  appointed  in  435.  Three  years 
later  the  result  of  their  labors  was  published  in  the  east  by 
Theodosius  and  in  the  west  by  Valentinian  III.  The  code 
is  an  historical  one,  its  model  being  the  Gregorian  and 
Hermogenian  codes — private  collections  of  the  third  cen- 
tury. This  explains  the  excessive  number  of  edicts,  the 
confusion  and  conflict  in  this  "  short  compendium."  It 
was  the  hope  of  Theodosius  to  issue  another  code  for  more 
practical  use,  a  summary  of  the  law  "  which  would  not  ad- 
mit of  any  error  or  ambiguity  and  which  would  show  to  all 
what  should  be  followed  and  what  could  be  avoided  " ;  ^ 
but  this  purpose  he  did  not  realize.^ 

1  De  Theodosiani  Codicis  Auctoritate. 

2  Codex  Theodosianus,  bk.  i,  tit.  i,  art.  5.  (In  the  following  pages 
this  code  will  be  referred  to  as  C.  Th.) 

3  A  word  regarding  the  literary  history  of  the  code.  An  incomplete 
embodiment  of  its  legislation  was  preserved  in  the  Lex  Romana  Visi- 
gothorum  or  Breviary  of  Alaric,  a  Visigothic  compilation  of  the  sixth 
century,  which  was  the  principal  source  of  Roman  law  in  southern 
Europe  prior  to  the  twelfth  century.  The  earliest  modern  editions  of 
the  Theodosian  code  were  based  upon  the  lex  romana.  Gradually 
other  fragmentary  manuscripts  of  the  code  were  discovered  and  these, 
with  the  lex  romana,  formed  material  for  textual  criticism.  Cujacius, 
the  French  jurist  of  the  sixteenth  century,  did  more  than  any  other  of 
the  earlier  editors  for  the  formation  of  a  comparative,  critical  text. 
The  greatest  deficiencies  were  in  the  first  five  books.  In  the  early  nine- 
teenth century  Peyron  and  Clossius  discovered  new  manuscripts  which 


123]  INTRODUCTION  1 3 

The  character  and  environment  of  Theodosius,  in  addi- 
tion to  the  forces  just  reviewed,  influenced  the  selection  of 
the  ecclesiastical  edicts  to  be  preserved  in  the  code,  in  all 
one  hundred  and  forty  in  number/  By  nature  and  educa- 
tion the  emperor  was  as  devout  as  the  ascetic  ideals  of  the 
age  could  demand.  He  made  "  his  palace  little  different 
from  a  monastery,  for  he  with  his  sisters  rose  in  the  morn- 
ing and  recited  responsive  hymns  in  praise  of  the  Deity." 
He  is  said  to  have  learned  the  Holy  Scriptures  by  heart 
and  he  would  often  discourse  with  the  bishops  on  scriptural 
subjects  as  if  he  had  been  an  ordained  priest  of  long  stand- 
ing.^ Consequently  the  legislation  of  the  Arian  emperors 
in  regard  to  heresy  was  not  included  in  the  code,  while  the 
police  edicts  touching  heresy,  as  well  as  the  more  important 
legislation  of  those  who  professed  the  Nicene  faith,  were 
preserved.  The  edict  of  Honorius  which  provided  against 
imperial  intervention  in  episcopal  elections  was  not  incor- 
porated, for  it  was  not  in  keeping  with  the  custom  of  the 
east;  the  edict  of  Gratian  dealing  with  the  authority  of  the 
Bishop  of  Rome  over  other  churches  was  likewise  omitted. 

Clerical  authorship  is  evident  in  this  ecclesiastical  legis- 

corrected  many  of  these  defects,  and  the  way  was  thus  opened  for  the 
editions  of  Haenel  {Codex  Theudosianus,  1842,  vol.  ii  of  his  Corpus 
Juris  ante-Justiniani)  and  of  Vesme  (Corpus  Juris  Romani,  pars  i,  torn, 
i.  1839).  Theodore  Mommsen  left  uncompleted  a  new  edition  for  a 
Collectio  librorum  juris  ante-Justiniani  in  usum  scholarium,  which  has 
been  published  since  his  death  in  1903.  The  ablest  commentator  on  the 
legislation  of  the  code  was  Godefroy,  a  jurist  of  the  seventeenth  cen- 
tury. His  edition  of  the  code,  to  which  he  devoted  thirty  years,  is  one 
of  the  monuments  of  legal  scholarship  {Codex  Theodosianus,  Lyons, 
1665).  It  is  indispensable  to  any  historical  or  comparative  study  of  the 
code.  In  this  study  I  have  followed  the  text  of  Haenel  and  the  criti- 
cisms of  Godefroy,  since  the  text  of  Mommsen  did  not  come  to  hand 
until  after  the  work  was  finished. 

1  A  few  are  repeated  in  different  books  and  titles  of  the  code. 

2  Socrates,  Historia  Ecclesiastica,  vii,  22. 


14  EDICTS  OF  THE  THEODOSIAN  CODE  [124 

lation,  especially  from  the  reign  of  Gratian.  The  ordina- 
tion of  bishops,  the  age  of  deaconesses,  the  tonsure,  celibacy, 
as  well  as  the  weightier  problems  of  episcopal  jurisdiction, 
heresy  and  apostasy,  the  immunity  of  the  clergy  from  taxa- 
tion, are  among  the  subjects  treated.  In  the  language  we 
find  such  ancient  words  as  saeculi,  antisHs,  sacrosancta  con- 
verted to  an  ecclesiastical  usage  and  the  expressions  lumen 
de  lumine,  Deus  de  Deo,  nefariae  praevaricationis  altaria, 
and  sanctissimo  catholicae  venerahili  concilio,  used  in  an 
ecclesiastical  sense — ample  evidence  that  here  the  clergy  be- 
gan that  participation  in  civil  legislation  which  characterized 
European  life  for  so  many  centuries. 


CHAPTER  I 

The  Conflict  between  Paganism  and  Christianity, 
AS  IT  Appears  in  the  Code 

An  introduction  to  the  ecclesiastical  legislation  of  the 
Roman  Empire,  suggestive  of  the  vast  influence  which  the 
church  acquired  in  public  affairs,  is  to  be  found  in  the  at- 
titude of  the  Christian  emperors  toward  the  ancient  na- 
tional religious  system,  popularly  known  as  paganism.  The 
relation  of  this  system  to  the  Roman  government  had  been 
primarily  political.  Since  the  dawn  of  Roman  history  its 
representatives  had  received  political  privileges  and  exemp- 
tions from  economic  obligations  to  the  state,  while  in  re- 
turn religion  gave  a  moral  support  to  political  institutions. 
The  new  career  of  the  church  that  began  with  Constantine 
wrought  a  vast  change  in  this  aspect  of  Roman  civilization. 
The  alliance  of  paganism  and  the  Empire  was  dissolved;  in 
its  place  there  developed  a  union  of  the  Christian  church  and 
the  state.  Yet  the  ancient  religious  institutions  were  so 
intimately  associated  with  national  tradition  and  custom 
that  the  transition  from  the  old  order  to  the  new  was  a 
gradual  one,  and  in  the  legislation  which  discloses  it  there 
are  three  distinct  periods. 

The  first  of  these  includes  the  laws  of  Constantine  and 
his  sons,  which  reveal  all  the  characteristics  of  the  religious 
problem.  Constantine,  by  conferring  the  rights  of  a  cor- 
poration on  the  church,  by  exempting  the  clergy  from  the 
economic  burdens  of  citizenship  and  by  introducing  the  epis- 
copal court  into  the  judicial  system,  made  himself  the 
125]  15 


1 6  EDICTS  OF  THE  THEODOSIAN  CODE  [126 

subject  of  praise  and  reverence  in  ecclesiastical  tradition. 
But  he  never  withdrew  the  support  which  the  state  had 
always  given  to  the  established  religious  institutions,  and 
the  pagan  mould  of  Roman  society  was  not  decisively 
changed.  The  exact  nature  of  his  religious  policy  has  been 
the  subject  of  more  than  three  hundred  books  and  mono- 
graphs since  the  sixteenth  century.^  Was  he  actuated 
by  political  motives,  the  desire  to  balance  the  Christian 
and  the  pagan  forces  in  the  Empire,  or  did  political  con- 
ditions prevent  him  from  making  an  open  attack  on  the  in- 
stitutions of  paganism  in  behalf  of  Christianity?  Was  he 
at  heart  a  pagan,  playing  a  political  game  with  the  church, 
or  was  he  a  Christian,  forced  by  circumstances  to  tolerate 
and  endure  moral  and  religious  conditions  with  which  he 
had  no  sympathy? 

For  the  answer  to  these  inquiries  there  are  four  classes 
of  evidence;  the  opinions  of  literary  contemporaries,  the 
testimony  of  inscriptions,  Constantine's  general  conduct  and 
attitude  toward  religious  institutions,  to  be  gathered  from 
the  existing  accounts  of  his  life,  and  lastly  his  legislation. 

As  to  the  first  of  these,  the  Christian  writers  are  unan- 
imous in  their  belief  in  Constantine's  piety  and  devotion 
to  the  church,  while  the  pagan  authors  never  accuse  him  of 
hypocrisy.  The  principal  literary  source  relied  upon  by 
those  who  have  doubted  the  sincerity  of  his  religious  pro- 
fessions is  Zosimus,  the  embittered  pagan  historian  of  the 
fifth  century.^  He  tells  the  story  of  Constantine  without 
reference  to  Christianity,  repeats  the  slanders  upon  his 
character  made  by  Julian,  and  describes  him  as  a  man 
devoid  of  humane  and  religious  instincts.     But  the  reliabil- 

1  For  bibliography  of  the  literature  relating  to  Constantine,  see 
McGiffert's  edition  of  Eusebius,  in  Schaff's  Select  Library  of  Nicene 
and  Post-Nicene  Fathers  of  the  Christian  Church,  series  2,  vol.  i  (1890). 

2  Historia  Romano. 


127]      '^HE  CONFLICT  OF  RELIGIONS  AND  THE  CODE     ly 

ity  of  Zosimiis  is  impeached  by  the  contradiction  of  other 
sources.  His  account  of  the  erection  of  temples  in  Constan- 
tinople by  the  emperor  is  not  only  contrary  to  Eusebius,  but 
there  is  evidence  that  the  edifices  mentioned  were  older  than 
the  new  city.^  The  death  of  Licinius  through  the  treachery 
of  Constantine  is  likewise  discredited  by  the  probability  that 
his  execution  was  demanded  by  the  army;  while  the  story 
of  Constantine's  murder  of  his  wife  Fausta  is  false,  since 
she  was  living  as  late  as  340,  three  years  after  the  death  of 
her  husband.^  The  general  inaccuracy  of  Zosimus  and  the 
anti-Christian  tone  of  his  work  therefore  prevent  any  re- 
liance upon  his  narrative  unless  confirmed  by  other  author- 
ities. 

Certain  inscriptions  have  been  frequently  cited  in  evidence 
of  Constantine's  attachment  to  paganism,  but  they  are  far 
from  conclusive.  The  petition  of  the  citizens  of  Hispellum, 
a  town  in  Umbria,  for  permission  to  institute  games  and  a 
temple  in  honor  of  the  Flavian  gens  was  indeed  granted 
by  Constantine,  but  with  the  command  that  "  no  building 
dedicated  to  our  name  shall  be  polluted  by  the  contagion  of 
any  superstition;"  and  no  imperial  cult  in  his  memory  was 
established  until  after  his  death. ^  The  claim  that  the  cross 
was  not  a  symbol  of  Christianity  before  the  fourth  cen- 
tury, and  that  therefore  the  labarum  did  not  indicate  Con- 
stantine's conversion  from  paganism,  can  no  longer  be  sup- 
ported. Moreover,  the  introduction  of  coins  with  Christian 
symbols  when  the  conservative  influence  of  commerce  would 
oppose  any  alteration  in  the  customary  standards  of  trade, 

1  Victor  Schultze,  in  Zeilschrift  fiir  Kirciiengcschichte,  vol.  vii,  p.  352. 
He  also  shows  that  it  is  doubtful  if  pagan  ceremonies  were  used  at  the 
foundation  of  Constantinople. 

2  Schultze,  ibid.,  vol.  viii,  p.  534. 
*  Ibid.,  vol.  vii,  pp.  343,  360. 


l8  EDICTS  OF  THE  THEODOSIAN  CODE  [128 

suggests  more  than  a  political  motive  in  the  toleration  of 
the  church/ 

If  the  common  criticisms  of  Constantine's  religious  char- 
acter and  policy  are  viewed  in  the  light  of  the  Christian 
culture  of  his  age,  many  of  their  inconsistencies  are  ex- 
plained. He  lived  at  a  time  when  many  pagan  and  Chris- 
tian customs  coalesced.  If  sensuous  celebrations  in  honor 
of  the  gods  were  perpetuated  as  feasts  commemorative  of 
the  martyrs,  why  should  the  apotheosis  of  Constantine  ex- 
cite surprise?^  His  baptism,  deferred  until  his  last  days, 
was  in  accord  with  the  Christian  custom  derived  from  a  be- 
lief that  that  sacrament  cleansed  its  recipient  from  the  guilt 
of  all  previous  sins.  His  friendship  and  association  with 
prominent  pagans  is  no  more  an  impeachment  of  the  sin- 
cerity of  his  religious  profession  than  the  similar  conduct 
of  Theodosius,  the  patron  of  Libanius  and  Symmachus, 
men  who  represented  the  higher  aspirations  of  Roman  re- 
ligion in  its  age  of  decadence.  His  acceptance  of  the  title 
of  Pontifex  Maximus  involved  no  participation  in  the  cere- 
monial functions  of  paganism — those  were  performed  by 
the  promagister — it  was  but  a  recognition  of  his  control 
over  the  institutions  of  paganism  which  was  necessary  if 
their  connection  with  Roman  life  was  ever  to  be  dissolved. 

If  the  conditions  of  Christian  custom  and  culture  are 
reflected  in  Constantine's  attitude  toward  the  religious  prob- 
lem, how^  much  more  important  must  have  been  the  fact  that 
a  majority  of  his  subjects  were  non-Christian  in  their  sym- 

1  Schultze,  vol.  vii,  p.  344. 

2  Ibid.,  vol.  vii,  p.  367.  The  value  of  these  articles  of  Schultze  is 
that  they  show  how  readily  certain  writers  like  Burckhardt  {Die  Zeit 
des  Konstantin  des  Grossen)  and  Brieger  (Konstantin  der  Grosse  als 
Religion-Politiker)  have  accepted  as  evidence  for  the  support  of  the 
thesis  that  Constantine's  religious  policy  was  dictated  by  political 
motives,  statements  that  they  have  not  subjected  to  the  test  of  thorough 
criticism. 


129]     ^^^  CONFLICT  OF  RELIGIONS  AND  THE  CODE     19 

pathies?  Under  such  conditions  any  attack  by  him  upon 
the  prerogatives  of  paganism  in  the  interest  of  the  church 
required  unusual  tact.  The  situation  is  clearly  revealed  in 
his  legislation  upon  the  pagan  cults,  which  falls  into  two 
distinct  periods,  separated  by  the  death  of  Licinius. 

The  problems  of  the  first  period  seem  to  have  been  mainly 
political.  In  the  east  Licinus  appealed  to  the  religious  pre- 
judices of  his  non-Christian  subjects — even  resorted  to  per- 
secution of  the  church — in  preparation  for  the  inevitable  con- 
flict with  Constantine.  It  was  therefore  necessary  for  Con- 
stantine  to  secure  control  of  the  pagan  cults  in  the  west  in 
order  to  prevent  any  political  use  of  them  by  the  Licinian 
party.  To  this  end  the  practice  of  secret  divination  and 
the  consultation  of  the  haruspices,  except  through  the  regu- 
lar ceremonies  of  the  temples,  were  forbidden.^  The  use 
of  magic  arts  against  life  or  chastity  was  punished  by  death; 
the  interpretations  of  public  calamities  by  the  haruspices 
were  required  to  be  transmitted  to  the  emperor;  and  the 
compulsive  observance  of,  or  participation  in,  pagan  rites  by 
Christians  was  forbidden.^  As  his  panegyrist  declares  that 
Constantine  fought  Maxentius  "  against  the  council  of  men, 
against  the  advice  of  the  haruspices,"  this  legislation  does 
not  signify  a  belief  in  the  divinatory  arts,  rather  an  effort 
to  forestall  any  attempt  to  make  use  of  divination  in  any 
political  conspiracy  against  the  fortunes  of  the  Flavian 
family. 

The  legislation  of  the  second  period,  which  extends  from 
the  fall  of  Licinius,  is  inspired  by  something  more  than  a 
political  motive.     Its  first  statute  was  an  edict  directed  to 

1  C.  Th.,  ix,  16,  I,  2  (a.  d.  319).  Penalty,  death  for  the  divinator 
and  the  confiscation  of  property  and  exile  of  the  one  patronizing  him. 

-  C.  Th.,  ix,  16,  3  (Magic)  ;  C.  Th.,  xvi,  10,  i.  The  occasion  of  the 
second  edict  was  the  injury  of  the  Flavian  amphitheatre  by  lightning 
in  321. 


20  EDICTS  OF  THE  THEODOSIAN  CODE  [130 

Palestine,  recalling  the  Christians  who  had  been  exiled  for 
their  faith,  restoring  their  confiscated  property,  and  reliev- 
ing them  from  service  in  the  courts/  A  general  edict  was 
addressed  to  the  provinces  which  recounted  the  suffering 
of  the  Christians,  the  vengeance  of  God  on  the  persecu- 
tors, the  divine  guidance  in  the  personal  fortunes  of  the 
emperor,  and  confirmed  the  policy  of  toleration  established 
by  Galerius  and  Licinius  in  the  following  words : 

Let  those  therefore  who  still  delight  in  error  be  made  welcome 
to  the  same  degree  of  peace  and  tranquillity  which  they  have 
who  believe.  For  it  may  be  that  this  restoration  of  equal 
privilege  to  all  will  prevail  to  lead  them  into  the  strait  path. 
With  regard  to  those  who  hold  themselves  aloof  from  us,  let 
them  have  if  they  please,  their  temples  of  lies ;  we  have  the 
glorious  edifice  of  Thy  truth,  which  Thou  hast  given  us,  our 
native  home.- 

This  was  really  a  censure  of  paganism  under  the  guise  of 
an  avowal  of  tolerance.  It  was  followed  by  the  appoint- 
ment of  Christian  governors  in  the  east  and  the  renewal 
of  the  edicts  against  divination  and  domestic  sacrifice, 
which  Licinius  had  not  enforced.^      A  more  direct  attack 

1  Euseb.,  Vita  Const.,  ii,  34-42. 

2  The  authenticity  of  this  edict  has  been  questioned  by  Schultze  (Ztsch. 
fur  K.  G.,  vol.  xiv)  and  by  Crivellucci  (Delia  fedc  storiadi  Etiscbi  nella 
vita  di  Constantino).  But  Seeck  has  ably  defended  it  and  criticized  the 
objections  to  it  {Ztsch.  fUr  K.  G.,  vol.  xviii).  The  chief  criticism  offered 
is  the  blending  of  the  rhetorical  and  ecclesiastical  language.  This  indi- 
cates that  it  was  not  the  work  of  Constantine  but  of  several  authors. 
But  similar  objections  might  be  made  to  other  edicts  which  are  generally 
accepted  as  expressing  the  wishes  of  some  emperor  or  king.  This  edict 
is  also  the  first  official  declaration  of  a  policy  of  religious  toleration  by 
Constantine.  The  so-called  Edict  of  Milan  was  the  work  of  Licinius 
and  was  directed  to  a  part  of  the  empire  only.  (Seeck  in  Ztsch.  fur 
K.  G.,  vol.  xii,  p.  381).  The  first  edict  of  toleration  was  by  Galerius 
in  311. 

3  Euseb.,  Vita,  ii,  44,  45. 


131]     THE  CONFLICT  OF  RELIGIONS  AND  THE  CODE     2 1 

on  the  ancient  religious  system  was  then  instituted  by  a 
general  prohibition  of  sacrifices,  public  as  well  as  private, 
and  of  the  rebuilding  of  fallen  temples/ 

After  these  prohibitions  of  divination,  of  sacrifice  and  of 
the  repair  of  temples,  nothing  remained  to  paganism  but  its 
legal  privileges.  As  the  cults  and  the  religious  sentiment 
of  Rome  were  associated  with  the  amusements,  games,  fes- 
tivals and  other  phases  of  popular  life,  the  overthrow  of 
these  privileges  would  have  provoked  serious  protest.  More- 
over, paganism  had  still  a  strong  hold  on  the  official  and 
administrative  classes,  and  the  legislation  against  it  could 
be  enforced  only  in  those  provinces  where  it  was  approved 
by  public  opinion  and  imperial  officials.  These  facts  ex- 
plain Constantine's  association  with  prominent  men  who 
were  devoted  to  the  ancient  religious  system  and  his  con- 
firmation of  the  legal  rights  of  paganism.  In  the  light  of 
these  conditions,  the  words  of  Zosimus  that  the  emperor 
"  indeed  used  the  ancient  worship  of  his  country,  though  not 
so  much  out  of  honor  or  veneration  as  of  necessity,"  have 
an  interpretation  not  implied  by  their  context.  Constan- 
tine  was  more  than  a  patron  of  Christianity,  for  with 
him  began  that  legislation  by  which  pagan  rites  were  de- 
prived of  their  position  in  Roman  civilization,  and  by  which 
the  mould  of  antique  life  was  replaced  by  the  Christian 
church. 

Tlie  policy  of  Constantine  was  continued  by  his  sons. 
While  nothing  is  known  of  the  attitude  of  Constantine  TI 
toward  the  religious  problem,  Constans  seems  to  have  con- 
curred in  the  policy  of  his  elder  brother,  Constantius.  In 
341  that  emperor  published  an  edict  which  prohibited  sacri- 
fices, and  five  years  later  he  ordered  the  temples  to  be  closed, 
that  "  the  possibility  of  sin  might  be  taken  from  the  lost."  - 

1  C.  Th.,  xvi,  10,  2 ;  xv,  i,  3.     Cf.  Euseb.,  Vita,  iv,  25. 

-  C.  Th.,  xvi,  10,  2,  4. 


22  EDICTS  OF  THE  THEODOSIAN  CODE  [132 

Soon  after,  a  far  more  radical  insult  to  religious  traditions 
was  offered  by  Constans.  In  the  senate  house  stood  the 
altar  of  Victory,  the  statue  of  a  woman  standing  on  a 
globe,  with  arms  extended  and  a  wreath  of  laurel  on  her 
head.  Before  this  altar  an  offering  of  wine  and  incense 
was  made  as  a  prelude  to  all  senatorial  deliberations.  This 
symbol  of  Rome's  majesty  and  grandeur  was  removed 
from  its  place  of  honor  by  an  imperial  order.  The  indignity 
became  a  source  of  political  revolt  in  the  military  rebellion 
led  by  Magnentius,  nominally  a  Christian,  and  supported  by 
the  discontented  pagans  in  the  west,  which  cost  Constans  his 
life  in  350. 

Constantius,  after  suppressing  the  rebellion,  emphasized 
its  religious  character  by  interdicting  the  "  nocturnal  sacri- 
fices "  which  Magnentius  had  tolerated,  and  in  later  legis- 
lation he  threatened  with  death  those  who  participated  in 
sacrifices,  consulted  the  haruspices,  augurs,  soothsayers  or 
the  magic  arts.^ 

Although  confiscated  temples  were  often  transformed  into 
churches,  and  sometimes,  as  at  Alexandria,  the  public  officials 
co-operated  with  ecclesiastical  enthusiasts  in  the  destruc- 
tion of  the  memorials  of  heathenism,  these  laws  restricting 
paganism  were  not  universally  or  continuously  executed.^ 
The  association  of  paganism  with  Roman  life  remained  un- 
broken. Constans  excepted  from  the  edict  closing  the 
temples  such  as  were  "  without  walls,"  and  connected  with 
the  games  and  amusements.^  While  Constantius  distributed 
some  of  the  property  of  the  proscribed  cults  as  gifts  to  his 
friends,  he  entrusted  the  execution  of  the  laws  against  the 
violation  of  sepulchres  to  the  pagan  priesthood.     In  356,  the 

1  C.  Th.,  xvi,  10,  5,  6;  ix,  16,  4,  5,  6  (a.  d.  357-358). 

2  Sozomenus,  iii,  17;  C.  Th.,  x,  i,  8.  Sozomenus,  iv,  10,  is  authority 
for  a  special  edict  against  paganism  at  Alexandria. 

3  C.  Th.,  xvi,  10,  3. 


133]     THE  CONFLICT  OF  RELIGIONS  AND  THE  CODE     23 

year  of  his  last  prohibition  of  sacrifices,  he  expressed  ad- 
miration for  the  temples  at  Rome  and  confirmed  the  legal 
privileges  of  the  vestals/  The  enforcement  of  these  edicts 
against  paganism  therefore  must  have  been  occasional,  de- 
pending on  the  temporary  passion  which  inspired  them  and 
the  public  sentiment  in  the  various  provinces.  In  spite  of 
their  severity  Symmachus  could  say  that,  although  Con- 
stantius  followed  another  religion  he  conserved  the  ancient 
faith. - 

The  religious  legislation  of  Constantine  and  his  sons  was 
rescinded  by  Julian.  The  privileges  and  immunities 
which  had  been  conferred  on  the  church  and  clergy  were 
recalled ;  the  pagan  temples  were  destroyed  and  the  services, 
which  had  been  neglected  in  the  reigns  of  his  predecessors, 
were  re-established.  Jovian,  the  successor  of  Julian,  was  a 
Christian  and  restored  to  the  church  the  privileges  and  some 
of  the  property  it  had  lost;  but  in  his  short  reign  of  eight 
months  he  did  not  have  time  to  develop  a  distinct  religious 
policy.^  Themistius,  the  pagan  rhetorician,  praises  him  for 
the  decision  that 

what  pertains  to  religion  and  the  cult  of  the  divine  will  should 
be  according  to  the  judgment  of  the  individual,  thus  imitat- 
ing the  Deity,  who  placed  in  all  men  a  natural  appetite  for  re- 
ligion, yet  desired  that  the  nature  and  method  of  propitiating 
the  divine  will  should  be  determined  by  the  preference  and 
free  choice  of  each  personality.* 

This  policy  of  toleration  was  continued  by  Valentinian  I 

^  C.  Th.,  ix,  17,  2;  Symmachus,  Ep.,  x,  54;  C.  Th.,  xvi,  10,  6.  In 
358  paganism  was  also  tolerated  in  an  edict  which  permitted  a  public 
assembly  of  the  "priests  of  the  Province  of  Africa." 

2  Symmachus,  Ep.,  x,  3. 

8  Soz.,  vi,  4;  Theodoretus,  Historia  Ecclesiastica,  iv,  4. 

•*  Oratio  de  Religione. 


24  EDICTS  OF  THE  THEODOSIAN  CODE  [134 

and  Valens/  The  privilege  of  teaching  which  Juhan  had 
withdrawn  from  the  Christian  scholars  was  restored,  and 
an  ecclesiastical  veneer  was  given  public  life  by  forbidding 
judicial  processes  against  Christians  to^  be  heard  on  Sunday, 
granting  amnesty  to  petty  criminals  at  Easter  and  excusing 
members  of  the  theatrical  profession  who  had  received  bap- 
tism from  continuing  their  career.^  On  the  other  hand, 
the  legal  rights  of  the  national  religious  system  were  con- 
firmed, and  official  impartiality  toward  the  litigation  over 
temples  that  had  fallen  into  the  hands  of  Christians  in  the 
reign  of  Constantine  and  his  sons  and  had  later  been  re- 
stored to  the  pagan  cults  by  Julian,  was  preserved  by  con- 
fiscating them  to  the  fiscus.^  To  Ammianus  Marcellinus, 
the  pagan  historian  of  this  time,  Valentinian  was  "  especi- 
ally remarkable  for  his  moderation  "  in  keeping  a  "  middle 
course  between  the  different  sects  of  religion,"  for  abstain- 
ing from  the  promulgation  of  "  any  threatening  edicts  to 
bow  down  the  necks  of  his  subjects  to  the  form  of  worship 
to  which  he  himself  was  inclined,"  and  leaving  religious 
parties  "  just  as  he  found  them."  * 

The  official  and  legal  relations  existing  between  paganism 
and  the  government  were  first  definitely  attacked  and  abro- 
gated by  Gratian.  A  man  of  admirable  disposition,  "  elo- 
quent, war-like,  and  merciful,  rivalling  the  most  admirable 
of  his  predecessors,  even  while  the  down  of  youth  was  on 

1  Valentinian  issued  an  edict  of  toleration  in  371   (C.  Th.,  ix,  16,  9). 

~  C.  Th.,  xiii,  3,  6;  viii,  8,  i;  ix,  28,  3;  xv,  7,  i.  Valentinian 
was  the  first  of  the  emptrors  to  use  the  word  paganus  (countryman, 
rustic,  soldier)  to  designate  those  who  remained  faithful  to  the  non- 
Qiristian  cults  (C.  Th.,  xvi,  2,  18).  It  was  so  used  by  the  ecclesiastics 
because  the  stronghold  of  the  ancient  Roman  religion  was  in  the  rural 
communities. 

3  C.  Th.,  xii,  I,  60. 

•*  Historia  Annorum,  xxx,  9,  5.  Magic  and  the  occult  arts  were  sup- 
pressed by  Valentinian  but  not  the  haruspices.     C.  Th.,  ix,  16,  9. 


135]      ^^^^  CONFLICT  OF  RELIGIONS  AND  THE  CODE     25 

his  cheeks,"  he  was  more  susceptible  to  ecclesiastical  influ- 
ences than  any  of  the  preceding-  emperors/  Previous  em- 
perors had  followed  the  council  of  church  officials  in  eccle- 
siastical matters,  but  Gratian  was  the  first  to  seek  their  ad- 
vice in  secular  affairs.  An  incident  of  his  coronation  is  a 
prelude  to  his  religious  policy.  It  was  the  custom  for  the 
pontifices  to  place  upon  the  new  sovereign  priestly  robes  and 
to  hail  him  as  Pontifex  Maximus;  but  this  part  of  the  cere- 
mony Gratian  rejected,  declaring  that  it  did  not  become  a 
Christian  prince." 

Three  years  later,  after  the  defeat  and  death  of  Valens  at 
Adrianople,  Gratian  chose  Theodosius,  a  Spanish  general, 
as  his  associate  in  the  administration  of  the  empire,  and 
left  Sirmium  for  Italy.  At  Milan  he  met  Ambrose,  by 
far  the  ablest  ecclesiastical  politician  of  the  west.  There 
had  been  some  correspondence  between  them.  In  a  letter 
full  of  religious  feeling  Gratian  had  requested  Ambrose 
not  to  depart  from  Milan  before  his  arrival,  for  he  wished 
to  speak  with  him  and  to  open  his  heart  to  him  "  for  the 
entrance  of  divine  light."  In  reply  Ambrose  sent  his  tract 
On  the  Faith.^  The  first  result  of  a  friendship  so  cemented 
was  a  change  in  the  emperor's  attitude  towards  heresy  from 
one  of  toleration  to  persecution;  the  second,  an  attack  on 
the  sentiment  and  institutions  of  the  national  religion.* 
In  382  the  Altar  of  Victory,  which  had,  after  its  removal 
by  Constans,  been  restored  to  the  senate  house  by  Julian 

1  Ammian.  Mar.,  Hist.  Ann.,  xxxi,  10,  18.  For  a  similar  character- 
ization by  a  Christian  author,  cf.  Rufinus,  Hist.  Eccles.,  ii,  13. 

-  Zosimus,  iv,  36.  This  story  has  frequently  been  rejected,  but 
Schultze  has  answered  the  objections  to  it.  Gesch.  des  Untcr gangs  des 
griechisch-romischcn  Hcidcnthiims,  p.  213,  n.  2.     Time,  375  or  early  in 

3  The  letter  of  Gratian  precedes  the  epistles  of  Ambrose  in  the  edition 
of  Migne's  Patrologia  Latina,  vol.  xvi,  p.  913.     Ibid.,  De  Fide. 
*  For  heresy,  see  following  chapter. 


26  EDICTS  OF  THE  THEODOSIAN  CODE  [136 

was  again  taken  away  by  an  imperial  order.  ^  The  same 
year  the  right  to  receive  gifts  and  legacies  was  withdrawn 
from  the  pontifical  and  vestal  colleges,  their  endowments 
were  appropriated  to  the  fiscus,  and  the  privileges  and  ex- 
emptions of  the  priesthood  were  also  abolished.  ^  The  pagan 
members  of  the  senate  appointed  a  committee  to  present 
their  protest  against  this  violation  of  the  traditional  rights 
of  their  faith.  But  the  Christian  faction  sent  a  counter  mes- 
sage through  Pope  Damasus  and  Ambrose,  with  the  result 
that  the  pagan  embassy  did  not  obtain  an  audience  with  the 
emperor.  ^ 

These  events  were  soon  followed  by  the  rebellion  in 
Britain  and  Gaul,  led  by  Maximus,  and  the  murder  of 
Gratian.  The  pagan  party  saw  in  his  death  divine  ven- 
geance for  the  desecration  and  sacrilege  he  had  offered  the 
gods.  Its  representatives  in  the  senate  decided  to  petition 
his  younger  brother  and  successor,  Valentinian  II,  for  the 
restoration  of  the  Altar  of  Victory  as  a  step  toward  the 
repeal  of  Gratian's  legislation.  Symmachus,  Prefect  of 
Rome,  was  leader  and  spokesman  of  the  committee.  His 
address,  made  in  the  presence  of  the  emperor  and  the 
senate  is  a  noble  plea  for  the  religious  system  sO'  long  and 
intimately  associated  with  Roman  life  and  institutions. 

We  ask  peace  for  our  native,  indigenous  gods.  We  culti- 
vate the  same  soil,  we  are  one  in  thought;  we  behold  the 
same  stars,  the  same  heaven,  and  the  same  world  surrounds  us. 
Why  should  not  each,  according  to  his  own  prudence,  seek 
the  truth?  The  Great  Mystery  can  not  be  approached  by  one 
road.  The  divine  mind  distributed  various  cults  and  guard- 
ians in  the  cities;  as  various  spirits  in  youths,  so  the  fatal 

1  Ambrose,  Ep.,  xvii,  18;  Symmachus,  Ep.,  x,  3. 

2  Symmachus,  Ep.,  x,  3 ;  Ambrose,  Ep.,  xvii,  18 ;  C.  Th.,  xvi,  10,  20. 

3  Ambrose,  Ep.,  xvii,  9,  10. 


137]     THE  CONFLICT  OF  RELIGIONS  AND  THE  CODE     27 

genii  are  divided  among  nations.  Utility  should  decide  what 
the  gods  of  man  should  be.  Since  all  reason  is  in  darkness, 
what  is  better  than  that  the  recognition  of  the  divinities 
should  be  decided  by  the  memory  and  example  of  fortun- 
ate times.  If  great  age  gives  authority  to  religion,  such  a 
faith  is  to  be  preserved  for  all  ages,  and  our  fathers  who 
happily  followed  their  fathers,  are  to  be  followed  by  us.  I  do 
not  plead  merely  the  cause  of  Roman  religion ;  from  these 
recent  crimes  [the  legislation  of  Gratian]  have  come  all  the 
misfortunes  of  the  Roman  people.  The  law  of  our  fathers 
honored  the  vestal  virgins  and  the  ministers  of  the  gods  with 
the  necessities  of  life  and  just  privileges.  All  of  these  are  now 
diverted  to  degenerate  money  changers.  Following  this  came 
the  public  famine  and  a  blighted  harvest  deceived  the  hopes  of 
all  the  provinces.  Hence  are  all  the  misfortunes  of  the  earth. 
Let  us  charge  nothing  to  the  stars.  The  year  became  one  of 
drought  through  sacrilege,  for  it  was  necessary  that  all  things 
denied  to  religion  should  perish.^ 

These  words  of  Symmachus  had  a  profound  effect  on  the 
Christian  as  well  as  the  pagan  members  of  his  audience. 
The  imperial  consistory,  in  which  the  Arians  held  the  ma- 
jority, was  inclined  toward  a  favorable  reply.  But  Am- 
brose, in  an  address  full  of  sophistry,  exhortation  and  in- 
timidation, won  the  day.  If  the  Romans  were  preserved 
by  the  gods  in  the  wars  with  Hannibal,  why  w^ere  the  host- 
ages taken?  All  men  serve  the  emperor,  and  he  serves 
God.  But  he  who  would  be  loyal  to  the  true  God  must  have 
no  indulgence  for  the  gods  that  are  demons.  Idols  must 
be  burned  and  profane  ceremonies  abolished.  To  restore 
the  Altar  of  Victory  would  be  a  persecution  of  Christianity 
and  the  emperor  w^ould  thereby  become  an  apostate.  Am- 
brose even  made  the  threat  that  if  the  demands  of  the  pagan 

1  The  best  edition  of  the  Relatio  is  that  of  Seeck  in  the  Mon.  Germ. 
Hist.  Aniiquiss.  Auct.,  vi,  p.  280.  The  translation  here  given  is  an 
abridgment. 


28  EDICTS  OF  THE  THEODOSIAN  CODE  [138 

party  were  granted,  the  clergy  would  cease  to  perform  their 
services.  Finally,  Valentinian's  mind  was  directed  to  the 
memory  of  his  deceased  father  and  brother  whose  piety  and 
loyalty  to  the  church  would  be  seriously  offended  by  the 
proposed  restoration  of  the  Altar  of  Victory.^ 

Four  years  later,  in  388,  Theodosius  was  called  into 
Italy  to  protect  Valentinian  and  his  court  from  the  invasion 
of  Maximus.^  He  remained  in  the  west  three  years,  sup- 
pressing rebellion  and  reorganizing  the  imperial  adminis- 
tration. During  this  time  he  was  in  intimate  relations  with 
Pope  Siricius  and  Ambrose.  In  390  the  senate  again  sent 
an  embassy  to  Theodosius  at  Milan  to  ask  for  the  restora- 
tion of  the  Altar  of  Victory.  The  emperor  hesitated ;  even 
the  protest  of  i\mbrose  was  at  first  ineffective;  but  finally 
the  petition  was  refused.^  The  following  year  Symmachus, 
who  had  participated  in  the  rebellion  of  Maximus  and  had 
gained  imperial  favor  through  the  intercession  of  Leontius 
of  the  Novatian  sect,  made  another  plea  for  the  restora- 
tion of  the  Altar.  The  appeal  was  in  vain;  Symmachus 
was  exiled.*  In  the  same  season,  probably  after  this  event, 
two  edicts  were  issued,  one  for  Rome,  the  other  for  the 
east,  which  have  been  well  named  the  requiem  of  paganism. 
They  forbade  any  one  to  pollute  himself  with  sacrifices,  to 
slay  an  innocent  victim,  to  enter  temples,  to  approach  shrines 
or  to  do  reverence  to  statues  formed  by  mortal  hands. ^  In 
392  sacrifice  was  assimilated  with  the  crime  of  lese-majesty, 
tlie  property  of  the  guilty  and  places  of  sacrifice  were  con- 

1  Ambrose,  Ep.,  xvii. 

2  The  religious  and  political  aspects  of  Maximus's  revolt  will  be  dis- 
cussed in  the  following  chapter. 

3  There  is  some  difference  of  opinion  as  to  the  date  when  the  em- 
bassy met  Theodosius.  I  follow  Rauschen,  Jahrbiicher  der  christlichen 
Kirche,  p.  316.     Amb.,  Ep.,  Ivii. 

*  Rauschen,  ibid.,  p.  335.  ^  C.  Th.,  xvi,  10,  10,  11. 


139]     THE  CONFLICT  OF  RELIGIONS  AND  THE  CODE     29 

fiscated,  and  the  cults  of  the  Lares  and  Penates  were 
prohibited.  ^ 

When  Theodosius  returned  to  the  east  in  391  he  left 
Valentinian  II  a  protector  against  tlie  influence  of  the 
courtiers  in  the  person  of  Arbogastes,  a  Prankish  general, 
who  was  given  the  power  to  appoint  all  civil  and  mili- 
tary ofificers.  This  authority  he  exercised  in  the  interest 
of  the  Germans  and  the  pagan  party,^  The  pagan  mem- 
bers of  the  senate  again  petitioned  for  the  restoration 
of  the  Altar  of  Victory,  but  Valentinian  declined  to  grant 
the  request.^  Then  came  a  quarrel  between  Valentinian 
and  Arbogastes  which  resulted  in  the  rebellion  of  Arbo- 
gastes and  the  murder  of  Valentinian.  The  Prankish 
leader  placed  Eugenius,  a  Roman  noble  and  a  Christian, 
on  the  vacant  throne.  His  religious  policy  was  one  of 
toleration;  but  he  needed  the  support  of  all  parties  and 
sects  in  the  approaching  conflict  with  Theodosius.  He 
would  not  permit  the  restoration  of  the  Altar  of  Victory, 
but  under  the  guise  of  gifts  to  his  friends,  he  restored  many 
temples  to  their  ancient  cults.*  Pagan  ceremonies  and  pro- 
cessions were  revived  at  Rome  and  many  Christians  re- 
lapsed to  the  religious  faith  they  had  formerly  professed. 

In  394  Theodosius  returned  to  the  west  with  an  army,  de- 
feated the  forces  of  Eugenius  and  Arbogastes  at  Aquilea, 
and  then  visited  Rome.  He  appeared  before  the  senate 
and  begged  its  members  "  to  relinquish  their  former  errors 
and  to  embrace  the  Christian  faith,  which  promises  absolu- 
tion from  all  sins  and  impieties."  When  "  not  one  in- 
dividual could  be  persuaded,"  he  abolished  "  the  sacred 
rights  and  ceremonies  recently  revived."  Many  converts 
from  paganism   were  now  made  by  the  church.     Among 

1  C.  Th.,  xvi,  10,  12.  2  Rauschen,  loc.  cit.,  p.  360. 

3  Ambrose,  Ep.,  Ivii,  5.  ■*  Ibid.,  6,  8. 


30  EDICTS  OF  THE  THEODOSIAN  CODE  [140 

these  were  some  of  the  prominent  families  of  Rome,  such 
as  "  the  venerable  assembly  of  Catos,  the  luminaries  of  the 
world,  who  stripped  themselves  of  their  pontifical  garments, 
cast  off  the  skin  of  the  old  serpent  and  assumed  the  snowy 
robes  of  baptismal  innocence,  and  humbled  the  pride  of  the 
consular  fasces  before  the  tombs  of  the  martyrs."  ^ 

A  few  months  later  Theodosius  died.  It  is  not  necessary 
to  dwell  on  the  importance  of  his  reign  in  the  history  of  the 
church.  His  last  thoughts  were  more  for  its  welfare  than 
that  of  the  empire.  Ambrose  well  compared  his  zeal  for 
the  suppression  of  paganism  to  that  of  Jacob  and  King 
Josiah.^  His  religious  policy  was  continued  by  his  sons. 
Arcadius  renewed  the  legislation  of  his  father,  abolished  the 
legal  privileges  of  the  priesthood  in  the  east  and  sanctioned 
the  destruction  of  the  temples.^  In  the  west,  however, 
Stilicho,  who  was  entrusted  with  the  regency  during  the 
minority  of  Honorius,  desired  to  moderate  the  temper  of 
the  religious  conflict.  While  sacrifices  and  "  profane  rites'* 
were  prohibited,  the  destruction  of  temples,  statues  and 
ornaments  of  public  buildings  suggestive  of  paganism  was 
forbidden  and  the  ancient  games  were  protected.*  But  what- 
ever hopes  Stilicho  cherished  for  religious  toleration  were 
futile.  He  alienated  the  sympathies  of  the  Christians  by 
his  indifference  toward  their  religious  propaganda,  by  the 
introduction  of  pagans  into  the  imperial  service,  and  the 
reform  of  the  episcopal  courts. °      On  the  other  hand  his 

1  Prudentius ;  quoted  by  Gibbon.  The  authority  for  the  visit  of  Theo- 
dosius to  Rome  and  his  effort  to  convert  the  Senate  is  Zosimus,  iv,  59; 
V,  30.  This  is  rejected  by  some  modern  writers  as  a  confusion  with  a 
visit  to  Rome  after  the  rebellion  of  Maximus.  Cf.  Bury's  Gibbon,  voL 
i,  appendix  x. 

2  Ambrose,  De  Obitu  Theod.,  4,  35,  38. 

3  C.  Th.,  xvi,  10,  13,  14,  16.  •*  C.  Th.,  xvi,  10,  15,  17,  18. 
^  For  episcopal  court,  see  ch.  v. 


I^l]     THE  CONFLICT  OF  RELIGIONS  AND  THE  CODE     31 

wife,  Serena,  a  zealous  Christian,  aroused  the  prejudice  of 
the  pagan  party.  She  was  accused  of  taking  ornaments 
from  the  temple  of  the  Great  Mother,  and  this  story  was 
probably  responsible  for  the  report  that  Stilicho  had  robbed 
the  Temple  of  Jupiter  and  burned  the  Sibylline  books. ^ 
The  instability  of  Stilicho's  administration  is  well  illustrated 
by  the  invasion  of  Italy  by  Alaric  in  404.  The  pagans  saw 
in  the  event  the  punishment  of  the  gods  for  his  failure 
to  champion  their  cause;  the  Christians  explained  it  as  the 
result  of  a  conspiracy  of  Stilicho  and  Alaric  and  attributed 
the  Roman  success  at  Pollentia  to  supernatural  intervention. 
After  the  murder  of  Stilicho  the  ecclesiastical  party  was 
again  in  the  ascendant.  The  temples  were  confiscated  and 
deprived  of  their  remaining  income,  while  bishops,  as  well 
as  civil  officers,  were  entrusted  v/ith  the  execution  of  re- 
ligious law." 

Once  more,  however,  the  hopes  of  the  pagan  party  re- 
vived when  Attalus,  a  barbarian,  placed  on  "  an  imperial 
throne  with  a  purple  robe  and  crown  "  by  Alaric,  addressed 
the  senate  as  "  consul  and  pontifex  "  and  gave  prominent 
pagans  important  offices  of  state.  But  the  new  regime  was 
temporary;  Alaric  was  soon  dissastified  with  Attalus  and 
deprived  him  of  his  crown,  and  with  his  fall  the  last  hopes 
of  paganism  as  a  political  force  in  Italy  vanished.^ 

1  Rauschen,  loc.  cit.,  p.  558. 

2  Augustine,  De  Civitate  Dei,  v,  23 ;  Orosius,  Historiorum  adversum 
Paganos,  vii,  38. 

3  In  Africa  the  conflict  was  prolonged,  for  there  the  sentiment  in 
favor  of  the  ancient  cults  was  especially  strong.  In  415  Honorius  con- 
fiscated to  the  fiscus  "all  places  which  the  error  of  the  fathers  dedicated 
to  the  service  of  the  gods"  in  Africa,  together  with  the  religious  corpora- 
tions and  their  incomes,  sanctioned  the  destruction  of  the  statues  in  the 
public  buildings  and  deposed  the  pagan  priests  from  office.  C.  Th.,  xvi, 
10,  20.  The  legislation  of  Valentinian  III  on  heresy  and  schismatics 
includes  pagans.  This  indicates  that  paganism  was  no  longer  a  political 
force  and  was  not  deemed  worthy  of  much  attention. 


32  EDICTS  OF  THE  THEODOSIAN  CODE  [142 

In  the  east  Theodosiiis  renewed  the  legislation  of  his 
father,  abolished  the  legal  privileges  of  the  priesthood  and 
sanctioned  the  destruction  of  temples.  Here  the  resist- 
ance of  paganism  was  far  feebler  than  in  the  west,  for 
here  the  Roman  state  religion  was  not  indigenous.  The 
decisive  legislation  was  that  of  Theodosius  the  Younger  in 
416,  during  the  regency  of  Pulcheria,  which  prohibited 
the  future  employment  of  pagans  in  civil  or  military  admin- 
istration.^ This  edict  seems  to  have  been  effective,  for 
seven  years  later  an  edict  which  renewed  former  legislation 
against  the  adherents  of  paganism  contains  the  sentence: 
"We  believe  that  they  [the  pagans]  are  no  more."  ^  Sugges- 
tive of  the  vast  change  wrought  in  the  traditions  of  the  em- 
pire from  Constantine  to  Theodosius  the  Younger  is  the  last 
edict  of  the  code,  which  forbids  sacrifices  on  penalty  of  death 
and  orders  the  destruction  of  temples,  if  any  exist.^ 

^  C.  Th.,  XV,  10,  21. 
2  Ibid.,  xvi,  10,  22. 
«  Ibid.,  xvi,  10,  25. 


CHAPTER  II 

Heresy  and  Ecclesiastical  Institutions 

The  legislation  which  severed  the  alliance  that,  for  ages, 
had  united  the  Roman  government  and  the  ancient  pagan 
religious  system,  has  been  noted.  The  change  thus 
wrought  in  classical  traditions  and  culture  is  one  unpre- 
cedented in  the  religious  history  of  antiquity.  It  was,  how- 
ever, only  one  phase  of  the  ever-increasing  influence  of  the 
church,  and  its  meaning  cannot  be  fully  realized  without 
considering  a  parallel  series  of  edicts,  namely,  those  which 
treat  of  heresy  and  the  Christian  faith.  In  analyzing  them, 
the  same  periods  are  distinguishable  as  in  the  suppression  of 
paganism.  Constantine  established  the  precedent  for  im- 
perial intervention  in  ecclesiastical  affairs;  Valentinian  I 
held  aloof  from  the  religious  conflict;  while  Gratian  and 
Theodosius  finally  and  decisively  fixed  the  alliance  of  the 
state  with  ecclesiastical  creed  and  persecution. 

As  all  efforts  to  suppress  religious  dissension  in  the  first 
two  periods  were  made  by  emperors  who  were,  to  some  de- 
gree, patrons  of  Arianism,  their  edicts  were  not  preserved 
by  the  compilers  of  the  Theodosian  code,  for  they  lived  in 
a  century  when  the  triumph  of  the  opposing  party  which 
pointed  to  Athanasius  as  its  greatest  champion,  was  com- 
plete. The  ecclesiastical  historians  and  the  controversial 
writings  are  therefore  the  sole  authority  in  forming  an  esti- 
mate of  the  imperial  attitude  toward  heresy  before  the  reign 
of  Gratian. 

143]  33 


34  EDICTS  OF  THE  THEODOSIAN  CODE  [144 

Since  Constantine  desired  that  the  church  should  con- 
tribute to  the  social  and  moral  strength  of  the  empire,  re- 
ligious dissension  was  a  menace  to  the  public  welfare,  and 
if  necessary,  secular  authority  might  be  exercised  for  its 
suppression/  Indeed,  peace  and  political  unity  had  hardly 
been  established  after  the  period  of  civil  war  which  followed 
the  death  of  Diocletian,  when  the  Donatist  schism  arose  in 
Africa  and  demanded  some  attention  on  the  part  of  the 
secular  authorities. 

"  The  schism  of  that  time  throve  on  the  wrath  of  an  an- 
gry woman;  ambition  fostered,  and  avarice  strengthened 
it,"  says  Optatus — a  statement  which,  if  true,  indicates 
that  little  good  was  to  be  expected  from  the  persecution 
endured  by  the  African  church  under  Diocletian;  and  un- 
fortunately facts  seem  to  confirm  its  truth.  In  311  the 
presbyter  Csecilian  was  chosen  bishop  of  Carthage.  His 
defeated  rivals  found  sympathy  in  the  person  of  Lucilla,  a 
wealthy  matron  whom  Csecilian  had  offended  by  reproof 
of  her  ardent  devotion  to  the  saints  and  martyrs.  An  issue 
which  would  serv^e  to  develop  opposition  to  Csecilian  and 
afford  a  means  of  questioning  his  election  was  soon  found. 
A  few  years  previous  (305),  just  after  the  close  of  the  Dio- 
cletian persecution,  a  synod  had  been  held  for  the  election 
of  a  new  bishop  of  Cirta.  In  that  meeting  Secundus,  Pri- 
mate of  Numidia,  accused  some  of  the  colleagues  of  betrayal 
of  trust  (traditio),  i.  e.,  of  having  saved  their  lives  by  de- 
livering to  the  state  officials  the  scriptures  and  treasures  of 
the  church.  The  election  resulted  in  the  choice  of  Silvanus, 
one  of  those  accused  of  this  crime.  Secundus  and  his  fol- 
lowers were  now  invited  to  Carthage  by  Lucilla  and  her 
clerical  friends.  The  validity  of  Caecilian's  election  was 
questioned.     Felix  of  Aptunga,   who  had  assisted  in  his 

1  Cf.  C.  Th.,  xvi,  2,  3,  6;  also  Eusebius,  Vita  Constantini,  ii,  64. 


145]  "^^^^^  35^ 

ordination,  was  accused  of  traditio,  and  the  claim  that 
only  primates  could  ordain  primates  was  also  advanced. 
The  discontented  Carthaginian  clergy  and  their  imported 
adherents  therefore  held  a  synod  and  elected  Majorinus,  a 
friend  of  Lucilla,  Bishop  of  Carthage/  Such  was  the 
origin  of  the  Donatist  schism.-  As  time  passed,  the  schis- 
matics emphasized  the  theory  that  sacraments  administered 
by  polluted  hands  are  ineffective,  and  the  Csecilianists,  when 
they  saw  that  the  Bishop  of  Rome  favored  their  cause, 
elaborated  the  idea  of  a  federation  of  churches.^ 

The  conditions  which  made  Donatism  a  problem  of  state 
were  Constantine's  restoration  of  church  property  that  had 
been  confiscated  by  Diocletian,  his  gift  of  money  to  the 
African  church,  and  the  exemption  from  public  burdens 
that  he  conferred  on  the  clergy.*  It  was  necessary  for  the 
secular  officials  to  decide  which  party  should  be  the  bene- 
ficiary of  these  favors  and  when  the  decision  was  rendered 
in  the  interest  of  the  Csecilianists,  the  Donatists  addressed 
a  protest  to  the  civil  authorities,  who  wrote  to  Rome  for  in- 
structions. In  reply  to  a  letter  from  Anulinus,  Proconsul 
of  Africa,  Constantine,  in  313,  referred  the  decision  of  the 
schism  to  the  bishop  of  Rome.^     A  synod  was  held  and  its 

1  The  Bishop  of  Carthage  was  Primate  of  the  Proconsulate  Provinca 
of  Africa. 

-  So-called  from  Donatus,  a  reader  and  successor  of  Majorinus,  who 
was  a  prominent  leader  of  the  schism. 

3  Cf.  Voelter,  Dcr  Ursprung  dcs  Donatismns,  Freiburg,  1883. 

*  Euseb.,  Hist.  Ecd.,  x,  5,  6,  7.  The  first  of  these  documents  restores 
property  "  to  the  Catholic  church  alone."  This  may  mean  the  church 
in  a  general  sense,  not  a  distinction  between  orthodox  and  schismatical 
churches.  The  second,  granting  money  to  the  African  church,  shows 
that  Constantine  had  heard  of  the  schism.  The  third  limits  the  ex- 
emption from  public  burdens  to  the  Csecilianists. 

s  The  letter  of  appeal  to  Constantine  given  by  Optatus  {De  Schis- 
mate  Donatistarum,  i,  22)  is  rejected  by  Seeck  as  a  forgery  (Ztsch.  fiir 
K.  G.,  vol.  X,  p.  550).     But  that  there  was  such  an  appeal  is  shown  by 


36  EDICTS  OF  THE  THEODOSIAN  CODE  [146 

verdict  was  against  the  Donatists.  They  had  complained 
that  a  complete  examination  of  their  cause  had  not  been 
made,  and  Constantine  therefore  ordered  another  hearing 
at  Aries  in  314.  In  the  early  part  of  315  Aelianus,  a  civil 
officer,  made  an  examination,  by  order  of  Constantine,  of 
the  charges  against  Felix  of  Aptunga.  Felix  was  cleared, 
his  successors  and  prominent  Csecilianists  were  cited  to 
appear  before  Constantine.  In  the  meantime  the  synod  of 
Aries  had  decided  against  the  Donatists,  who  then  made 
another  appeal  to  Constantine/  A  final  hearing  was 
granted  in  the  presence  of  the  emperor  at  Milan  in  316, 
and  the  verdict  was  once  more  against  the  Donatists.  It 
was  ineffective,  the  schism  continued,  and  this  caused  Con- 
stantine to  resort  to  legislation. 

The  outlines  of  the  edict  authorizing  persecution  have  not 
been  preserved,  but  the  sources  indicate  that  Donatist 
churches  were  confiscated  and  that  some  of  the  Donatist 
leaders  suffered  death."  The  fanaticism  of  the  schismatics, 
however,  did  not  abate  and  Constantine,  seeing  that  his 
efforts  for  peace  in  the  church  were  ineffective,  put  an 
end  to  the  persecution,  and  during  the  remainder  of  his 
reign  the  Donatists  prospered,  establishing  churches  in 
Rome  and  Spain.^ 

the  letter  of  Constantine  to  Miltiades,  Bishop  of  Rome  (Euseb.,  H.  E., 
X,  5)  and  by  the  letter  of  Anulinus  given  by  Augustine  {Ep.,  88). 

1  Euseb.,  H.  E.,  x,  5.  Seeck  makes  the  date  of  the  synod  316  and 
thinks  Constantine  was  present.  But  this  view  is  not  confirmed  by  the 
facts.    The  date  is  generally  conceded  to  be  314. 

2  There  is  a  reference  to  the  legislation  of  Constantine  in  C.  Th.,  xvi, 
6,  2,  of  Gratian.  Cf.  the  Monumenta  vetera  ad  Doiiatistarum  His- 
toriam  pertinentia  (Migne,  Pat.  Lat.,  vol.  viii,  p.  750)  for  the  confisca- 
tion of  property  and  martyrs.  A  certain  Sernio  de  Vexatione  Dona- 
tistarum  temporihus  Leontii  et  Ursatii,  recounts  the  martyrdom  of 
Donatists  at  the  hands  of  military  authorities. 

3  Augustine,  Brev.  Collat.  cum  Donatist.,  iii,  40;  Optatus,  ii,  4. 


147]  "^^^^^  37 

The  same  desire  to  preserve  unity  within  the  church, 
rather  than  the  protection  of  any  creed  or  interpretation  of 
Qiristian  doctrine,  led  Constantine  to  intercede  for  the 
settlement  of  the  Arian  controversy.  Soon  after  the  de- 
feat of  Licinius  in  324  this  theological  issue,  which  in- 
volved the  diverging  intellectual  traditions  of  the  church, 
seriously  threatened  the  religious  unity  of  Egypt  and  the 
entire  east.  Believing  "  disunion  in  the  church  "  a  danger 
to  the  state  "  more  grievous  than  any  kind  of  war,"  Con- 
stantine sent  Hosius  of  Cordova  to  Alexander  and  Arius  to 
exhort  them  to  cease  contending  about  "  small  and  incon- 
siderable questions,"  for  as  "  philosophers  may  belong  to 
one  system  and  take  issue  on  certain  points,"  yet  "  are  re- 
called to  harmony  of  sentiment  by  the  untiring  power  of 
their  common  doctrines,"  why  should  not  "the  ministers  of 
the  Supreme  God  "  be  "  of  one  mind  respecting  the  profes- 
sion of  the  same  religion  ?"  ^  When  this  appeal  failed,  the 
emperor,  on  the  advice  of  the  bishops,  convoked  the  gen- 
eral synod  of  Nicea.^  He  made  no  attempt  to  influence  the 
synod's  solution  of  its  problem.  He  desired  that  the  ec- 
clesiastical authorities  should  make  an  independent  settle- 
ment, but  he  participated  in  the  debates,  and,  at  the  critical 
moment,  his  influence  was  effective  in  the  adoption  of  a 
creed.  He  then  confirmed  the  synod's  work  by  threatening 
with  exile  those  who  did  not  accept  its  standard  of  faith  and, 
at  the  conclusion  of  the  council,  he  gave  its  decrees  the  force 
of  imperial  laws.'' 

1  Euseb.,  Vita^  ii,  64. 

2  Ibid.,  iii,  6.  Rufinus,  Historia  Ecclesiastica,  i,  5,  for  convocation 
by  advice  of  bishops. 

3  Rufinus,  H.  E.,  i,  5;  Euseb.,  Vita,  iii,  17,  19;  Socrates,  Historia 
Ecclesiastica,  i,  9.  The  Novatians  were  excepted  from  the  operation 
of  this  legislation.  C.  Th.,  xvi,  5,  2.  The  story  given  by  Socrates,  that 
Constantine  called  the  Arians  Porphyreans  and  ordered  the  works  of 


38  EDICTS  OF  THE  THEODOSIAN  CODE  [148 

The  weakness  of  the  Nicene  creed  lay  in  the  fact  that 
it  was  in  advance  of  the  conservative  doctrine  of  the  east 
and  west.  However,  the  west,  which  habitually  looked  to 
authority  for  guidance,  finally  accepted  the  decision  of  the 
"  great  and  holy  council,"  w^hile  the  tendency  of  the  east 
was  to  look  behind  the  work  of  the  council  to  those  in- 
herited doctrines  which  were  the  predecessors  of  Arianism. 
Naturally  the  opinions  in  the  east  and  the  west  at  first  shaped 
the  policy  of  their  rulers.  When  Constantine  took  up  his 
permanent  residence  in  the  east,  he  was  influenced  by  its  at- 
titude toward  religious  problems.  Therefore,  while  he  did 
not  repeal  the  legislation  which  confirmed  the  work  of 
Nicea,  he  permitted  the  return  of  the  exiled  Arians,  counte- 
nanced the  deposition  of  Athanasian  bishops  on  various 
charges,  and  was  finally  baptized  by  an  Arian  bishop,  Euse- 
bius  of  Nicomedia.^  Both  of  the  efforts  he  made  to  re- 
store unity  in  the  church  failed.  The  creed  of  Nicea, 
sanctioned  by  imperial  decree,  like  the  legislation  against 
the  Donatists,  only  added  increased  confusion  and  com- 
plication to  the  problem  it  was  intended  to  solve. 

The  religious  as  well  as  the  political  conditions  in  the 
three  years  succeeding  the  death  of  Constantine  are  obscure. 
Aside  from  the  statement  of  Athanasius  that  Constantine  II 
recalled  the  exiled  bishops,  nothing  is  known  of  that  em- 
peror's policy;  while  the  attitude  of  Constantius  and  Con- 
stans  toward  ecclesiastical  problems  seems  to  have  been 
shaped  by  the  dominant  factions  east  and  west.^ 

Arius  to  be  burned,  is  spurious.  Seeck  regards  it  as  a  forgery  of 
Athanasius  (Ztsch.  fur  K.  G.,  vol.  xviii,  p.  48),  from  whose  writings 
Socrates  derived  the  information. 

1  Examples  of  Constantine's  policy  are  his  confirmation  of  the  con- 
demnation of  Eustathius  of  Antioch  on  a  charge  of  Sabellianism  in  330, 
his  citation  of  Athanasius  to  the  synod  of  Tyre  in  335,  and  the  exile 
of  that  ecclesiastic  to  Gaul  after  a  personal  appeal  to  Constantinople. 

2  Athanasius,  Hist.  Ar.,  8.     It  has  been  suggested  that  the  return  of 


149]  HERESY  39 

Constantius  was  gifted  with  a  taste  for  polemical  discus- 
sion, his  mind  had  not  the  catholicity  of  taste  or  judgment 
of  his  father's,  and  he  was  more  susceptible  to  clerical  in- 
fluence. His  sympathies  were  won  for  Arianism  by  Euse- 
bius  of  Nicomedia,  and  he  did  not  hesitate  to  give  religious 
intolerance  the  support  of  civil  authority.  Upon  the  return 
of  Athanasius  to  Alexandria  shortly  after  the  death  of 
Constantine,  the  Arians  of-  that  city  met  and  elected  a  bishop 
in  the  person  of  Pistus,  one  of  those  radical  members  of 
their  party  who  had  been  condemned  at  Nicea.  The  fol- 
lowers of  Athanasius  protested,  sending  letters  to  the  neigh- 
boring bishops,  among  them  to  the  Bishop  of  Rome,  and 
perhaps  to  the  emperor  Constans,  while  Eusebius  and  his 
coterie  in  return  preferred  charges  against  Athanasius  be- 
fore both  emperors.^  The  result  was  the  election  of  a  new 
Bishop  of  Alexandria,  Gregory  of  Cappadocia,  in  the  winter 
of  338-39,  by  a  synod  at  Antioch,  where  Constantius  was 
residing.  In  IMarch  339  the  exarch  of  Egypt  published  an 
imperial  edict  confirming  this  election,  and,  after  a  period 
of  rioting,  the  new  bishop  entered  Alexandria  under  military 
escort.^ 

Similar  means  were  used  to  enforce  conformity  in  other 
parts  of  the  east.  Bishops  from  Thrace,  Syria,  Phoenicia 
and  Palestine  were  driven  from  their  dioceses  before  the 
spring  of  340.     Of  these  Lucius  of  Adrianople,  Marcellus 

the  exiled  bishops  was  due  to  the  eflfort  of  Constans  and  Constantine  11 
to  win  popularity  in  the  west,  and  therefore  it  was  not  opportune  for 
Constantius  to  protest.  (Loofs,  "  Arianismus,"  in  Rcal-Encyclopcdie, 
3d  ed.,  Bd.  ii).  Seeck,  on  the  other  hand,  thinks  that  it  was  the  result 
of  a  common  policy.  He  questions  the  letter  of  Constantine  II  which 
makes  the  recall  of  exiled  bishops  the  wish  of  his  deceased  father. 
(Ztsch.  fiir  K.  G.,  vol.  xvii). 

1  Athanasius,  the  leader  in  this  movement  of  protest,  defended  him- 
self in  a  letter  to  Constans.     Apologia  ad  Con.,  4. 

2  Ath.,  Ep.  Eticyi,  written  just  after  the  event  (Hist.  Ar.,  14). 


40  EDICTS  OF  THE  THEODOSIAN  CODE  [150 

of  Ancyra,  Asklepos  of  Gaza,  and  Paul  of  Constantinople 
sought  refuge  at  Rome/  Julius  of  Rome  addressed  a  let- 
ter of  protest  in  their  behalf  to  the  Arian  leaders.^  In 
reply  the  synod  of  Antioch  anathematized  all  who  had  been 
associated  with  Marcella  of  Antioch,  and  adopted  a  state- 
ment of  doctrine,  ante-Nicene  in  character;  while  a  few 
months  later  a  new  creed  was  formulated  by  a  second  synod 
at  Antioch,  which  was  sent  to  Constans  in  the  hope  that  it 
would  reconcile  the  west.* 

In  the  meantime  Constans,  at  the  suggestion  of  some  of 
the  western  clergy,  gained  the  consent  of  Constantius  for 
the  convocation  of  a  general  synod  of  the  church.*  This 
body  met  at  Sardica  late  in  343.  All  hopes  for  the  for- 
mation of  a  universal  creed  were  defeated  by  the  attitude 
of  the  western  ecclesiastics,  who  opposed  the  reopening  of 
the  cases  of  the  Arian  bishops  recently  deposed,  and  by 
the  consequent  withdrawal  of  nearly  all  the  eastern  members 
from  the  council.^  The  breach  between  the  two  parties  was 
thus  widened.  The  eastern  members  who  had  sympathized 
with  the  attitude  of  the  west  were  deposed  or  exiled.  But 
the  succeeding  years  are  notable  for  the  absence  of  any 
imperial  participation  in  the  Arian  controversy.  Constan- 
tius permitted  the  return  of  Athanasius  to  Alexandria  while 
Constans  was  engaged  in  a  persecution  of  the  Donatists, 

1  Ath.,  Apol.  c.  Ar.,  33;  Soc.  ii,  15.  For  references  to  the  sources 
for  individual  cases,  cf.  Loofs,  loc.  cit. 

2  This  was  done  after  a  synod  of  Rome  had  declared  Athanasius  and 
Marcellus  illegally  deposed.     Cf.  Ath.,  Apol.  c.  Ar.,  21,  35. 

3  Harnack,  Hist,  of  Dogma,  vol.  iv,  p.  6y.  Athanasius,  De  Synod.,  22, 
24.     Date,  341. 

*  Ath.,  Apol.  c.  Ar.,  4. 

5  The  eastern  members  then  drew  up  a  statement  of  doctrine,  and 
also  declared  Athanasius,  Marcellus,  Julius  of  Rome  and  other  leaders 
of  Sardica  excommunicated.     Socrates,  i,  20. 


15 I ]  HERESY  41 

caused  by  their  opposition  to  imperial  gifts  to  the  African 
church.^ 

After  the  death  of  Constans  and  the  end  of  the  rebelHon 
of  Magnentius,  more  radical  Arian  opinions  developed  in 
the  east  and  new  accusations  were  preferred  against 
Athanasius.  Constantius,  now  sole  emperor,  fell  under  the 
influence  of  Ursacius,  one  of  the  most  radical  and  unscrupu- 
lous of  the  Arian  bishops.  The  synod  of  Aries  (353)  con- 
demned Athanasius,  and  the  reaction  thus  begun  culminated 
in  the  synod  of  Milan,  held  in  355.  A  majority  of  its 
members  were  from  the  west,  but  an  Arian  creed  was  sub- 
mitted to  them  by  Constantius,  with  the  order  that  those 
who  would  not  subscribe  should  be  exiled."  Liberius  of 
Rome,  Hilary  of  Poitiers,  and  Eusebius  of  Vercelli  suf- 
fered the  penalty  of  non-conformity,  while  Athanasius  was 
expelled  from  Alexandria  by  imperial  troops.  Another 
radical  creed  was  soon  after  formulated  at  Sirmium.  The 
result  was  a  new  alignment  of  ecclesiastical  parties.  The 
conservative  Arians  could  not  be  reconciled  to  the  new 
radical  movement,  the  resistance  of  the  west  to  it  was  as- 
sured, while  later  councils  at  Ariminum  and  Seleucia  only 
increased  the  confusion  that  already  existed.^ 

The  attempt  of  Julian  to  revive  paganism  and  his  hostility 
to  Christianity  for  a  time  eliminated  political  influence  from 
the  religious  controversy  and  made  heresy  once  more  a 
purely  ecclesiastical  problem.  His  successor,  Jovian,  pro- 
fessed the  Nicene  faith,  but  when  "  the  ring-leaders  of 
contrary  factions  "  approached  him  "  in  the  interests  of  their 
causes,"  he  answered  them  "  in  gentle  and  courteous  lan- 
guage "  that  he  would  not  "  molest  any  religion  they  pro- 

1  Optatus,  De  Schismatc  Donatistatum,  iii,  3. 

2  Sulpicius  Severus,  Chronicon,  ii,  39. 

3  Cf.  Harnack,  History  of  Dogma,  vol.  i,  pp.  75-8o. 


42 


EDICTS  OF  THE  THEODOSIAN  CODE  [152 


fessed,  but  above  all  others  he  honored  and  reverenced  such 
as  were  peacemakers."  ^  In  the  divided  administration 
which  succeeded  that  of  Jovian,  the  religious  policy  of  the 
western  emperor,  Valentinian  I,  was  also  one  of  neutrality. 
In  the  beginning  of  his  reign  he  issued  an  edict  of  tolera- 
tion and  when  ecclesiastics  petitioned  him  in  behalf  of  their 
doctrine  he  replied,  "  It  is  not  right  that  I,  one  of  the  laity, 
should  examine  curiously  things  of  this  nature.  This  is 
for  the  consideration  of  priests,  and  whatever  they  shall 
decide  should  come  to  pass."  ^ 

The  policy  of  Valens,  emperor  of  the  east,  was  also  at 
first  one  of  toleration.  But  he  soon  fell  under  the  in- 
fluence of  Eudoxius,  one  of  the  radical  Arians.  When  rep- 
resentatives of  the  synod  of  Lampsacus  (364)  informed 
him  of  its  work  and  the  doctrine  it  represented,  Valens 
"  exhorted  them  not  to  be  at  variance  with  Eudoxius." 
Upon  their  remonstrance  he  sent  them  into  exile  and 
"  ejected  from  the  churches  or  maltreated  and  harassed  in 
some  other  form "  those  "  not  in  communion  with 
Eudoxius."  ^  The  conservative  Arians  suffered  as  much 
as  the  Athanasians  and  the  result  was  to  unite  the  two  into 
a  new  Nicene  party  v/hich  gained  ascendency  under  Theo- 

1  Socrates,  H.  E.,  iv,  25. 

2  The  edict  of  toleration  is  not  extant.  It  is  referred  to  in  C.  Th., 
ix,  16,  9.  The  quotation  is  from  Soz.,  H.  E.,  vi,  7.  The  letter  of  Valen- 
tinian to  an  Illyrian  synod,  directing  its  members  to  subscribe  to  the 
Nicene  creed,  given  by  Theodoretus,  H.  E.,  iv,  8,  is  doubtless  a  forgery. 
But  in  the  year  preceding  his  death  (375),  according  to  Theodoretus 
{Historia  Ecclesiastica,  iv,  7),  Valentinian  endorsed  the  dogma  of  the 
Athanasian  party.  This  chapter  of  Theodoretus  has  been  rejected  by 
Hefele  {Concilien  Geschichte,  vol.  i,  p.  741)  and  accepted  by  Schiller 
(Gesch.  der  rom.  Kaiserzeit,  vol.  ii,  p.  364).  If  the  statement  of  Theo-. 
'doret  is  true,  the  change  in  policy  could  have  had  but  little  effect,  for 
the  Gothic  war  opened  the  following  year  and  prevented  persecution. 

3  Soz.,  vi,  7.  Cf.  vi,  12,  which  says  that  the  bishops  exiled  by  Con- 
stantius  and  recalled  by  Julian  were  ejected  from  the  churches. 


153]  '^^^^^^''  43 

dosius.  Yet  the  extent  and  nature  of  the  persecution  by 
Valens  are  uncertain.  Only  six  cases  of  the  deposition  of 
bishops  as  the  result  of  his  reactionary  policy  are  known, 
and  of  these,  Athanasius  was  finally  recalled  to  Alexandria. 
The  statement  of  Sozomenus,  that  the  persecuted  "  sustained 
torture  of  body,  were  carried  to  the  tribunals  of  the  presi- 
dents [of  the  provinces],  and  on  account  of  the  faith  of 
which  they  were  found  guilty  were  deprived  of  their  prop- 
erty "  may  be  the  result  of  a  confusion  of  the  police  meas- 
ures against  the  Egyptian  monks  with  the  persecution  of 
doctrine.^  Yet,  in  373  Themistius,  a  distinguished  pagan 
philosopher,  addressed  an  oration  to  Valens  on  behalf  of  the 
persecuted.  Finally,  at  the  opening  of  the  Gothic  war  in 
376,  an  edict  of  toleration  to  all  sects  was  issued  and  the 
persecution  ceased." 

The  reigns  of  Gratian  and  Theodosius,  decisive  for  the 
relation  between  the  government  and  paganism,  were  equ- 
ally decisive  for  the  problem  of  heresy.  One  of  the  first 
acts  of  Gratian  was  to  reverse  the  tolerant  policy  of  his 
father,  Valentinian  I,  and,  in  the  interest  of  the  Nicene 
party,  always  dominant  in  the  west,  to  forbid  meetings  of 
heretics  and  to  confiscate  their  places  of  assembly  to  the 
fiscus.^  In  378  this  law  was  re-enacted,  but  later  in  the 
same  year,  perhaps  after  the  death  of  Valens,  toleration 
was  granted  to  all  sects  except  the  Eunomians,  Photinians 
and  Manichjeans.'*     But  after  the  meeting  of  Gratian  and 

1  Soz.,  vi,  14;  C.  Th.,  xii,  i,  63;  Soc,  iii,  22,  23. 

2  The  oration  of  Themistius  is  not  extant.  It  is  mentioned  by  Soz., 
vi,  36.  The  twelfth  oration  on  tolerance  was  made  at  an  earlier  date, 
perhaps  at  the  beginning  of  the  reign.  For  the  edict  of  376,  cf.  Soc. 
iv,  35- 

3  This  edict  is  not  extant.  It  is  referred  to  in  C.  Th.,  xvi,  5,  4.  Date, 
late  in  375  or  early  in  376. 

*  C.  Th.,  xvi,  5,  4.  Haenel  makes  the  date  376.  Rauschen  {loc.  cit., 
p.  330,  n.  i)  and  Godefroy  make  it  378;  cf.  Soc.  v,  2;  Soz.,  vii,  i.     The 


44  EDICTS  OF  THE  THEODOSIAN  CODE  [154 

Ambrose  in  379,  the  edict  of  toleration  was  rescinded,  and 
all  heresies  opposed  to  laws  divine  and  imperial  were  or- 
dered to  come  to  an  end/  Gratian,  however,  was  by  na- 
ture humane  and  moderate.  In  spite  of  this  legislation 
and  the  influence  of  Ambrose,  the  Arians  of  Milan  were 
permitted  to  retain  possession  of  one  basilica  until  the  in- 
sult of  Ambrose  by  the  Arians  of  Sirmium. 

A  far  more  drastic  policy  toward  heresy  was  pursued  by 
Theodosius.  In  380  he  was  seized  with  a  serious  illness  at 
Thessalonica  and  was  baptized  by  Acholeus,  a  Nicene 
bishop.^  After  his  recovery  he  issued  an  edict  to  the  people 
of  Constantinople  that  "  all  who  are  under  the  sway  of  our 
clemency  shall  adhere  to  that  religion  which,  according  to 
his  own  testimony,  coming  down  to  our  own  day  the  blessed 
Peter  delivered  to  the  Romans,  namely,  that  doctrine  which 
the   Pontiff   Damasus,   and   Peter,   Bishop   of   Alexandria, 

Eunomians  and  Photinians  were  Arian  sects ;  the  former  thought  that 
the  Son  is  of  different  essence  from  the  Father  and  that  he  is  created 
out  of  nothing;  the  latter  made  the  divinity  of  Jesus  a  growth  by 
moral  improvement  on  the  basis  of  human  nature.  The  Manichseans 
will  be  discussed  later. 

1  C.  Th.,  xvi,  5,  5.  Impp.  Gratianus,  Valcntinianus  et  Theodosius  A. 
A.  A.  ad  Hesperium  Pf.  P.  Omnes  vetitje  legibus  et  divinis  et  imperial- 
ibus  haereses  perpetuo  conquiescant.  Quisquis  opinionem  plectibilibus 
Dei  profanus  imminuit,  sibi  tantummodo  nocitura  sentiat,  aliis  obfutura 
non  pandat.  Quisquis  redempta  venerabili  lavacro  corpora  reparata 
morte  tabificat,  id  auferendo,  quod  geminat,  sibi  solus  talia  noverit, 
alios  nefaria  institutione  non  perdat.  Omnesque  perversse  istius  super- 
stitionis  magistri  pariter  et  ministri,  seu  illi  sacerdotali  assumptione 
episcoporum  nomen  infamant,  seu,  quod  proximum  est,  presbyterorum 
vocabulo  religionem  mentiuntur,  seu  etiam  se  diaconos,  cum  nee  Chris- 
tiani  quidem  habeantur,  appellant,  hi  conciliabulis  damnatae  dudum 
opinionis  abstineant.  Denique  antiquato  rescripto,  quod  apud  Sermium 
nuper  emersit,  ea  tantum  super  catholica  observatione  permaneant,  quae- 
perennis  recordationis  pater  noster  et  nos  ipsi  victura  in  aeternum  aeque 
numerosa  iussione  mandavimus.  Dat.  Ill  Non.  Aug.  Medioliano,  Ace. 
XIII  Kal.  Sep.  Ausonio  et  Olybrio  Coss.  (379). 

-  Soz.,  vii,  4. 


155]  HERESY  45 

men  of  apostolic  sanctity,  now  follow,"  ctc.^  In  January 
of  the  following  year  another  edict  forbade  the  heretics  to 
assemble  within  the  cities,  required  the  name  of  the  one  and 
supreme  God  to  be  celebrated,  and  the  Nicene  faith,  as 
handed  down  by  the  fathers  and  confirmed  by  the  testimony 
and  assertion  of  divine  religion,  to  be  always  maintained." 
In  the  same  year,  after  the  reformulation  of  the  Nicene 
doctrine  by  the  Council  of  Constantinople,  which  was  con- 
voked by  the  emperor  to  adjust  problems  of  doctrine,  the 

1  C.  Th.,  xvi,  I,  2. 

2  C.  Th.,  xvi,  5,  6;  xvi,  5-6.  Ibid.,  A.  A.  A.  {Gratianus,  Valcntinianus 
et  Theodosius).  Eutropio  Pp.  P.  Nullus  haereticis  mysteriorum  locus, 
nulla  ad  exercendam  animi  obstinatioris  dementiam  pateat  occasio. 
Sciant  omnes,  etiamsi  quid  speciali  quolibet  rescripto  per  fraudem  elicito 
ab  huius  modi  hominum  genere  impetratum  est,  non  valere.  §  i.  Arce- 
antur  cunctorum  haereticorum  ab  illicitis  congregationibus  turbae.  Unius 
ct  summi  Dei  nomen  ubique  celebretur;  Niceanae  fidei,  dudum  a  maior- 
i'bus  traditae  et  divinae  religionis  testimonio  atque  assertione  firmatae, 
observantia  semper  mansura  teneatur;  Photiniae  labis  contaminatio, 
Ariani  sacrilegii  venenum,  Eunomiae  perfidiae  crimen  et  nefanda  mon- 
struosis  nominibus  auctorum  prodigiae  sectarum  ab  ipso  etiam  aboleantur 
auditu.  §  2.  Is  autem  Nicaenae  assertor  fidei  et  catholicae  religionis  verus 
cultor  accipiendus  est,  qui  omnipotentum  Deum  et  Christum  filium  Dei 
unum  nomine  confitetur,  Deum  de  Deo,  lumen  de  lumine;  qui  spiritum 
sanctum,  qui  id,  quod  ex  summo  rerum  parente  speramus,  accipimus, 
negando  non  violat :  apud  quem,  intemeratae  fidei  sensu,  viget  incorruptae 
trinitatis  indivisa  substantia,  quae  graeci  assertione  verbi  ovaca^  recte  cre- 
dentibus  dicitur.  Haec  profecto  nobis  magis  probata,  haec  veneranda 
sunt.  §  3.  Qui  vero  iisdem  non  inserviunt,  desinant  affectatis  dolis  alienum 
verae  religionis  nomen  assumere,  et  suis  apertis  criminibus  denotentur. 
Ab  omnium  summoti  ecclesiarum  limine  penitus  arceantur,  cum  omnes 
haereticos  iilicitas  agere  intra  oppida  congregatlones  vetemus,  ac,  si  quid 
eruptio  factiosa  tentaverit,  ab  ipsis  etiam  urbium  moenibus  exterminata 
furore  propelli  iubeamus,  at  cunctis  orthodoxis  episcopis,  qui  Nicaenam 
fidem  tenent,  catholicae  ecclesiae  toto  orbe  reddantur.  Dat.  IV  Id.  Ian. 
Constantinopali,  Eucherio  ct  Syagrio  Coss.  (381). 

The  phrases,  "Deum  de  Deo,  lumen  de  lumine,"  lead  Godefroy  to 
think  that  the  edict  w^as  published  after  the  council  of  Constantinople, 
for  they  appear  in  the  creed  formulated  at  the  council.  But  the  date 
of  the  edict  in  both  the  Theodosian  and  the  Justinian  codes  is  January, 
while  the  council  did  not  convene  until  May,  381. 


46  EDICTS  OF  THE  THEODOSIAN  CODE  [156 

proconsul  of  Asia  was  ordered  to  deliver  all  churches  to 
those  bishops  "who  profess  that  the  Father,  Son,  and  Holy 
Spirit  are  one  majesty  and  virtue,  the  same  glory,  one  light 
making  no  confusion  by  profane  division,  but  are. the  order 
of  the  Trinity,  the  incorporation  of  persons,  and  unity  of 
the  Divinity."  ^ 

The  Arians  did  not  surrender  without  protesting  their 
right  to  exist.  In  the  east  "  great  disturbances  arose  as  they 
were  ejected  from  the  churches."  "  This  and  the  con- 
flicting claims  of  orthodox  churches  to  the  property  of 
heretical  congregations  led  Theodosius  to  convene  a  gen- 
eral conference  of  all  sects  at  Constantinople  in  383.  He 
also  hoped  that  by  a  discussion  wdth  their  bishops  unanim- 
ity of  belief  might  be  established.^  But  instead  of  a  free 
exchange  of  opinion,  the  members  of  the  council  were 
asked  if  they  would  accept  as  authoritative  the  teaching 
of  those  fathers  who  lived  previous  to  the  dissension  in 
the  church.  When  Theodosius  received  no  satisfactory  re- 
ply, he  commanded  the  sects — the  Arians,  Eunomians,  Mace- 
donians and  Novatians — to  draw  up  written  statements  of 

1  C.  Th.,  xvi,  I,  3.  The  bishops  representing  the  faith  are  named. 
They  are  Nectarius  of  Constantinople,  Necrarius  of  Alexandria,  Pela- 
gius  of  Laodicea,  Diodorus  of  Tarsus,  Amphilocus  of  Iconia,  Optimus 
of  Antioch,  Helladius  of  Ctesarea,  George  of  Nyssa,  Terrenus  of 
Scythia,  Marmoria  of  Martianopolis  and  Olreius  of  Meletus.  All 
bishops  who  differed  from  the  faith  of  these  were  to  be  expelled  from 
their  dioceses.  {Cf.  Soz.,  vii,  9.)  It  is  notable  that  there  is  no  men- 
tion of  any  western  bishops.  The  reason  is  obvious.  Arianism  was 
primarily  an  eastern  problem  and  Theodosius  wished  to  solve  it  by 
appealing  directly  to  the  east  and  avoiding  any  appearance  of  tutelage 
of  the  east  by  the  west.  Cf.  Harnack,  History  of  Dogma,  vol.  ii,  p. 
95,  n.  I,  on  the  policy  of  Theodosius. 

2  Soz.,  v,  10. 

3  Ibid.  This  procedure  was  adopted  by  Theodosius  at  the  suggestion 
of  Nectorius  of  Constantinople,  to  whom  it  was  suggested  by  Sisennius, 
a  Novatian. 


157]  HERESY  47 

their  creeds.  Tliese  were  submitted  to  him  at  the  palace, 
and  after  prayer,  he  destroyed  them  all  except  that  of  the 
Novatians.  The  other  sects  withdrew  from  the  council 
and  soon  they  were  forbidden  to  hold  meetings,  to  ordain 
priests  or  to  promulgate  their  doctrines,  and  their  places  of 
assemblage  were  confiscated  to  the  fiscus/ 

The  hopes  of  Arianism  now  centered  in  the  west.  Tliere 
the  proscribed  faith  found  a  patron  in  the  person  of  Justina, 
widow  of  Valentinian  I  and  mother  of  Valentinian  II. 
After  the  death  of  Gratian  her  influence  at  court  was  su- 
preme and  Arian  officials  and  Gothic  troops  found  their  way 
into  the  imperial  service.  Ambrose  was  petitioned  for  the 
use  of  a  small  basilica  near  the  city  of  Milan  where  the 
Arians  might  celebrate  the  Easter  of  385  according  to  their 
own  rites.  He  refused,  and  when  the  request  was  repeated, 
he  advanced  in  his  reply  the  theory  that  property  once  in 

1  C.  Th.,  xvi,  5,  II,  12,  13.  Besides  the  sects  above  mentioned,  the 
Apollinarists,  Manichseans,  and  certain  sects  of  minor  importance  were 
included.     The  twelfth  edict  is  typical. 

Vitiorum  institutio  Deo  atque  hominibus  exosa,  Eunomiana  scilicet, 
Ariana,  Macedonia,  Apolinariana,  ceterarumque  sectarum,  quas  verae  re- 
ligionis  venerabili  cultu  catholicae  observantiae  fides  sincera  condeninat, 
neque  publicis,  neque  privatis  aditionibus  intra  urbium  atque  agrorum 
ac  villarum  loca  aut  colligendarum  congregationum  aut  constituendarum 
ecclesiarum  copiam  praesumat,  nee  celebritatem  perfidiae  suae  vel  solen- 
nitatem  dirae  communionis  exerceat,  neque  ullas  creandorum  sac- 
erdotum  usurpet  atque  habeat  ordinationes.  Eaedem  quoque  demus,  seu 
in  urbibus  seu  in  quibuscunque  locis  passim  turbae  professorum  ac  min- 
istrorum  talium  colligentur,  fisci  nostri  dominio  iurique  subantur,  ita  ut 
hi,  qui  vel  doctrinam  vel  mysteria  conventionum  talium  exercere  con- 
sueverunt,  perquisiti  ab  omnibus  urbibus  ac  locis,  propositiae  legis  vigore 
constricti  expellantur  a  coelibus,  et  ad  proprias,  unde  oriundi  sunt,  terras 
redire  iubeantur,  ne  quis  eorum  aut  commeandi  ad  quaelibet  alia  loca 
aut  evagandi  ad  urbes  habeat  potestatem.  Quod  si  negligentius  ea, 
quae  serenitas  nostra  constituit,  impleantur,  et  officia  provincialium  iudi- 
cum  et  principales  urbium,  in  quibus  coitio  vetitae  congregationis  re- 
perta  monstrabitur,  sententiae  damnationique  subdantur.  Dat  IV  Non. 
Sept.  Constantinopali,  Merobaude  II  et  Saturnino  Coss.  (383). 


48  EDICTS  OF  THE  THEODOSIAN  CODE  [158 

the  possession  of  the  church  is  the  property  of  God,  that 
priests  must  administer  it  and  never  permit  its  reversion 
to  the  world/  When  it  seemed  that  the  court  part)^  would 
resort  to  force,  Ambrose  threatened  the  soldiers  with  ex- 
communication. Public  opinion  was  with  him;  the  Nicene 
soldiers  left  their  Arian  captains  and  a  temporary  recon- 
ciliation between  Ambrose  and  Valentinian  followed.^  But 
in  386  the  emperor  gave  the  Arians  the  right  of  assemblage 
and  declared  that  its  violators  would  be  guilty  of  maiestas 
and  liable  to  the  death  penalty.^  When  Ambrose  again 
refused  to  allow  the  Arians  the  use  of  church  property 
Valentinian  issued  a  decree  exiling  him.  Ambrose  replied 
that  the  emperor  was  within  the  church,  not  over  it,  and 
that  in  matters  of  faith  the  layman  has  no  jurisdiction  over 
the  priest.*  The  sympathies  of  the  people  were  again  with 
him,  and  Valentinian  did  not  attempt  to  enforce  the  decree 
of  exile. 

This  quarrel  of  Ambrose  and  the  Arian  court  was  in- 
terrupted, in  387,  by  the  invasion  of  Italy  by  Maximus.  In 
383  Maximus  had  been  proclaimed  Augustus  by  the  army  in 
Britain;  after  the  murder  of  Gratian  he  extended  his  au- 
thority to  Gaul  and  Spain,  and  was  recognized  by  Valen- 
tinian and  Theodosius.^  He  now  appeared  in  Italy  as  the 
champion  of  the  Catholic  faith.®     Justina  and  Valentinian 

1  Amb.,  Ep.,  XX. 

2  See  Rauschen,  loc.  cit.,  pp.  212-214,  for  summary  of  events,  with 
references  to  the  sources. 

3  C.  Th.,  xvi,  I,  4;  4,  I.  ^  Amb.,  Ep.,  xxi. 

s  All  the  sources  except  Zosimus  agree  that  the  elevation  of  Maxi- 
mus was  the  work  of  the  army.  Cf.  Rauschen,  loc.  cit.,  p.  143,  n.  2. 
In  regard  to  the  death  of  Gratian  the  sources  vary.  Cf.  the  discussion 
of  Rauschen,  p.  482.  For  recognition  by  Valentinian  and  Theodosius, 
ibid.,  pp.  144  and  172. 

«  There  is  a  letter  of  Maximus  to  Valentinian  threatening  him  with 
war  if  he  did  not  cease  his  opposition  to  the  Catholic  faith.     (Theo- 


159]  HERESY  49 

fled  to  Thessalonica  and  implored  the  aid  of  Theodosius. 
After  cementing  a  political  alliance  by  marriage  with  Galla. 
sister  of  Valentinian,  Theodosius  assembled  a  large  army 
and,  in  the  summer  of  388,  invaded  Italy,  and  defeated  Max- 
imus  in  two  battles  in  Pannonia,  where  he  was  taken  prisoner 
and  executed.  At  the  opening  of  the  campaign  Valentinian 
had  withdrawn  from  the  Arians  their  rights  of  assemblage, 
of  erecting  altars  for  worship  and  of  celebrating  the  sacra- 
ments.^ Since  Justina  died  during  the  war,  there  was  no 
hope  for  the  toleration  of  paganism  in  the  reorganization 
of  administration  in  the  west. 

While  Theodosius  was  in  Italy  the  activity  of  the  heretics 
in  Constantinople  also  demanded  the  attention  of  the  civil 
authorities.  The  legislation  of  the  previous  years  had  not 
been  rigorously  enforced.  In  387  the  Arians  and  Apollin- 
arists  held  public  meetings  at  Constantinople  and  the  Euno- 
mians  conducted  a  religious  propaganda  in  Cappadocia.^ 
Consequently,  before  the  invasion  of  Italy,  an  edict  was  pub- 
lished which  withdrew  from  the  heretics  the  right  of  resi- 
dence in  the  cities  and  forbade  the  ordination  of  their 
officials.^  Then,  before  the  decisive  battle  with  Maximus, 
a  report  was  circulated  in  Constantinople  that  Theodosius 
had  been  "  cut  to  pieces  and  that  he  himself  had  been  cap- 
tured." The  Arian  sects  were  elated  and  burned  the  house 
of  Bishop  Nectorius,  and  another  report,  that  the  emperor 
had  issued  a  tolerant  edict,  was  circulated.* 

doret.,  H.  E.,  v,  14.)  This  writer  also  says  that  Theodosius  wrote  to 
Valentinian  that  it  was  no  wonder  that  Maximus  was  successful,  for 
he  defended,  while  Valentinian  persecuted,  the  orthodox  faith.  Ibid., 
V,  15- 

1  C.  Th.,  xvi,  5,  15.  2  Greg.  Naz.,  Ep.,  202.     Cf.  Soz.,  vi,  27. 

'  C.  Th.,  xvi,  5,  15.  This  was  probably  due  to  the  influence  of  Greg- 
ory Nazianzus  and  Nectorius  of  Constantinople. 

*  Soz.,  vii,  14. 


50  EDICTS  OF  THE  THEODOSIAN  CODE  [i6o 

These  conditions  were  responsible  for  two  edicts  which 
forbade  pubHc  discussions  of  religion,  the  publication  of 
religious  tracts,  and  threatened  with  the  punishment  of  a 
forger  (falsi  reus)  the  one  responsible  for  the  report  of  the 
tolerant  legislation/  After  the  return  of  Theodosius  to 
the  east  he  repeated  the  prohibition  of  the  residence  of 
heretics  in  Constantinople,  and  of  their  ordination,  as  well 
as  the  confiscation  of  places  of  worship,  in  392  and  394 — 
sufficient  evidence  that  heresy  was  one  of  the  numerous 
problems  which  the  imperial  administration  could  not 
promptly  or  efficiently  solve.^  But  when  Arcadius,  in  a 
series  of  edicts,  confirmed  and  re-enacted  his  father's  legis- 
lation, many  heretics  became  reconciled  to  the  orthodox 
church  and  heresy  ceased  to  be  a  political  problem  of  im- 
portance in  the  east.^ 

In  the  policy  of  Gratian  and  Theodosius  toward  heresy 
there  is  a  perceptible  change  from  that  of  their  predeces- 
sors. The  motive  which  actuated  Constantine's  interest  in 
problems  of  faith  was  one  of  expediency,  a  desire  for  unity 
in  the  church,  because  that  was  conducive  to  the  welfare  of 
the  state.  After  all  is  said  of  Constantius's  religious  opinions, 
the  political  aspects  of  heresy  were  to  some  extent  respon- 
sible for  his  policy,  while  the  military  character  of  Valens 
and  his  toleration  of  paganism  suggest  that  a  desire  for 
ecclesiastical  unity  rather  than  personal  interest  in  any  one 
creed  was  responsible  for  the  persecution  he  instituted. 
The  efforts  of  these  emperors  to  establish  religious  unity 

1  C.  Th.,  xvi,  4,  2 ;  ibid.,  5,  16.  A  special  edict  for  the  ApoUinarists 
was  drafted.     C.  Th.,  xvi,  5,  14. 

2  C.  Th.,  xvi,  5,  21,  22,  24 ;  cf.  4,  3. 

3  C.  Th.,  xvi,  5,  25,  26,  30.  Cf.  Soz.,  viii,  I.  The  character  of  Arca- 
dius's  legislation  shows  that  heresy  was  not  a  serious  political  problem. 
It  repeats  the  penalties  so  frequently  inflicted  on  heresy  and  is  directed 
against  heretics  in  general. 


l6l]  HERESY  51 

were  directed  against  ecclesiastical  leaders  and  officials.  In 
the  legislation  of  Gratian  and  Theodosius,  however,  re- 
ligious conviction  was  a  stronger  motive  than  political  ex- 
pediency. Therefore  the  lay  as  well  as  the  ecclesiastical 
members  of  the  sects  were  proscribed.  An  evidence  of  this 
change  in  purpose  is  the  conception  of  heresy  as  it  affected 
the  rights  of  citizenship.  Theodosius  made  the  violation 
of  divine  law  equivalent  to  sacrilege,  and  such  violation  in- 
volved the  loss  of  certain  rights  of  Roman  citizenship.^ 
First,  the  power  of  leaving  or  receiving  legacies,  one  of  the 
distinctive  privileges  of  Roman  citizens,  was  taken  from 
the  Manichaeans  in  381,  then  from  the  Eunomians  in  389.* 
Honorius  extended  this  legal  disability  to  the  Donatists  and 
Priscillianists,  while  Theodosius  the  Younger  applied  it  to 
all  sects. ^  The  right  to  hold  office  at  court  or  in  the  army 
was  withdrawn  from  the  Eunomians  by  Theodosius;  Hon- 
orius excluded  all  enemies  of  the  Catholic  sect  from  service 
in  the  palace;  and,  finally,  Theodosius  the  Younger  for- 
bade heretics  to  take  the  military  oath  of  allegiance  or  to 
serve  in  the  imperial  army.*    Apostates — those  forsaking  the 

1  C.  Th.,  xvi,  2,  25.  Qui  divinae  legis  sanctitatem  aut  nesciendo  con- 
fudunt  aut  negligendo  violant  et  ofifendunt,  sacrilegium  committunt 
(380). 

2  C.  Th.,  xvi,  5,  7,  17.  The  latter  edict  imposing  the  disabilities  on 
the  Eunomians  was  repealed  in  394  on  account  of  domestic  troubles  and 
the  friendship  of  Eutropius  for  the  heretics.  C.  Th.,  xvi,  5,  23.  It  was 
re-enacted  by  Arcadius,  ibid.,  5,  25. 

3  C.  Th.,  xvi,  5,  40,  65. 

*  C.  Th.,  xvi,  5,  29.  Marcello  Magistro  oMciorum.  Sublimitatem 
tuam  investigare  praecipimus,  an  aliqui  haereticorum  vel  in  scriniis  vel 
inter  agentes  in  rebus  vel  inter  palatinos  cum  legum  nostrarum  iniuria 
audeant  militare ;  quibus,  examplo  divi  patris  nostri,  omnis  et  a  nobis 
negata  est  militandi  facultas.  Quoscunque  autem  deprehenderis  culpae 
huius  aflfines,  cum  ipsis,  quibus  et  in  legum  nostrarum  et  in  religionum 
excidium  conniventiam  praestiterunt,  non  solum  militia  eximi,  verum 
etiam  extra  moenia  urbis  huiusce  iubebis  arceri.  Dat.  VIII  Kal.  Dec. 
Constantinopali,  Olybrio  et  Probino  Coss.   (395).     Ibid.,  42.      Eos,  qui 


^2  EDICTS  OF  THE  THEODOSIAN  CODE  [162 

Christian  faith — suffered  Hkewise.  Constantius  had  de- 
prived Christians  who  became  converts  to  Judaism  of  their 
testamentary  privileges,  and  Theodosius  extended  the 
penalty  to  those  forsaking  the  church  for  the  pagan  rites, 
permitting  the  revocation  of  their  testaments/  The  ec- 
clesiastical conception  of  the  offence  is  reflected  in  an  edict 
of  Valentinian  II  which  declares  that  those  who  desert  and 
profane  the  right  of  sacred  baptism  "  should  be  segregated 
from  the  companionship  of  all,"  cast  out  and  banished  un- 
less they  do  major  penance;  not  even  then  can  they  re- 
turn to  their  former  position  in  society  "  since  those  who 
pollute  the  faith  which  they  have  vowed  to  God  are  not  able 
to  behold  those  things  which  are  ideal  and  just.' 

catholicae  sectae  sint  inimici,  intra  palatium  militare  prohibemus,  ut 
nullus  nobis  sit  aliqua  ratione  coniunctus,  qui  a  nobis  fide  at  religione 
■discordat.  Dat.  XVIII  Kal.  Dec.  Ravenna,  Bosso  et  Philippo  Coss. 
(408).  Ibid.,  48.  Montanestas  et  Priscillianistos  et  alia  huiusce  modi 
genera  nefariae  superstitionis  per  multiplicita  scita  divalia  diversa  ulti- 
onum  supplicia  contemnentes,  ad  sacramenta  quidum  militiae,  quae  nos- 
tris  obsecundat  imperiis,  nequaquam  admitti  censemus,  etc.    Ibid.,  65. 

iC.  Th.,  xvi,  8,  7;  ibid.,  7,  1.  Eis.  qui  ex  Christianis  pagani  facti 
sunt,  eripiatur  facultas  iusque  testandi,  et  omne  defuncti,  si  quod  est, 
testamentum  summata  conditione  rescindatur  (381).  Such  legislation 
would  naturally  cause  confusion  in  the  possession  and  administration 
of  Roman  property.  It  was,  therefore,  modified  by  subsequent  edicts. 
Theodosius  allowed  catechumens  relapsing  to  paganism  to  leave  their 
property  to  their  children  and  brothers  (C.  Th.,  xvi,  7,  2),  and  Arcadius 
forbade  apostates  to  alienate  property  from  their  own  blood  {ibid.,  7, 
6).  Other  legislation  determined  the  method  by  which  testaments  might 
be  revoked.  According  to  the  edict  of  Gratian,  an  action  to  declare 
a  testament  void  (incMciosuni)  must  be  brought  within  five  years 
of  the  testator's  death.  (C.  Th.,  ii,  19,  5.)  Valentinian  II  states  that 
this  rule  applies  to  actions  against  apostate  testaments,  but  the  action 
cannot  be  instituted  by  an  apostate  against  an  apostate.  (C.  Th.,  7,  3.) 
But  Valentinian  III  abolished  the  time  limit  and  the  prohibition  of 
apostates  from  bringing  an  action.     (Ibid.,  7,  7.) 

2  C.  Th.,  xvi,  7,  4.  Impp.  Valentinianus,  Theodosius  et  Arcadius  A. 
A.  A.  Flavanus  Pf.  P.  Hi,  qui  sanctam  fidem  prodiderint  et  sanctum 
baptisma  profanerint,  a  consortio  omnium  segregati  sint,  a  testimoniis 


I63]  HERESY  53 

The  attitude  of  the  state  toward  the  Jews  also  seems  to 
have  been  affected  by  clerical  influences.  Honorius  and 
Theodosius  the  Younger  excluded  them  from  military  and 
all  other  public  services  except  municipal  offices,  while  an 
even  stronger  suggestion  of  their  position  in  mediaeval  so- 
ciety was  the  law  which  gave  temporal  officials  the  right  to 
inspect  and  increase  the  taxes  paid  into  the  public  treasuiy 
by  the  Jewish  communities/ 

alieni,  testanienti,  ut  ante  iam  sanximus,  non  habeant  factionem,  nulli 
in  hereditale  succedent,  a  nemine  scribantur  heredes.  Quos  etiam  prae- 
cepissemus  procul  abiici  ac  longius  amandari,  nisi  poenae  visum  fuisset 
esse  maioris,  versari  inter  homines  et  hominum  carere  suffragiis.  §  i. 
Sed  nee  unquam  in  statum  pristinum  revertentur,  non  flagitium  morum 
oblitera"bitur  poenitentia  neque  umbra  aliqua  exquisitae  defensionis  aut 
muniminis  obducetur,  quoniam  quidem  eos,  qui  fide,  quam  Deo  dicave- 
rant,  poUuerunt  et  prodentes  divinum  mysterium  in  profana  migrarunt, 
tueri  ea,  quae  sunt  commenticia  et  concinnata  non  possunt.  Lapsis 
etinim  et  erantibus  subvenitur,  perditis  vero,  hoc  est  sanctum  baptisma 
profanantibus,  nullo  remedeo  poenitentiae,  quae  solet  aliis  criminibus 
prodesse,  succuritur.  Dat.  V  Id.Maii  Concordiae,  Tatiano  et  Symmacho 
Coss.  (390- 

1  C.  Th.,  xvi,  7,  6,  7 ;  8,  24,  29.  There  are  twenty-nine  edicts  on 
Judaism  in  the  eighth  title  of  the  code,  and  five  in  the  ninth.  There 
are  three  periods  in  this  legislation.  First,  the  reigns  of  Constantine 
and  Constantius,  in  which  Jews  were  prohibited  from  punishing  those 
leaving  their  faith,  from  circumcising  their  slaves  and  trafficking  in 
Christian  slaves,  while  the  marriage  of  Jews  to  Christian  women  and 
the  conversion  of  Christians  or  Roman  citizens  to  the  Jewish  faith  was 
also  forbidden.  Jews  were  also  subjected  to  curial  obligations.  The 
second  period  extends  from  Julian  to  Theodosius,  a  period  of  tolera- 
tion, in  which  there  was  no  new  legislation.  Theodosius  was  urged  to 
legislate  against  the  Jews  by  Ambrose  {Ep.,  29),  but  we  find  him  com- 
paratively tolerant.  The  third  period  is  that  of  the  sons  and  successors 
of  Theodosius.  Rufinus  and  Eutropius  were  generous  to  the  Jews,  but 
Theodosius  II  interdicted  the  erection  of  new  synagogues,  forbade 
Jewish  patriarchs  to  decide  cases  between  Jews  and  Christians,  and  the 
possession  of  Christian  slaves  by  Jews ;  but  an  exception  was  made  in 
favor  of  Gamaliel,  a  patriarch  in  honor  at  the  court.  For  the  condition 
of  the  Jews  at  Alexandria,  cf.  Socrat.,  vii,  15.  Also  C.  Th.,  xvi,  8, 
18,  21.  On  the  condition  of  Jews  in  the  later  empire,  see  Gratz, 
Gcschichtc  dcr  Judcn,  vol.  iv. 


CHAPTER  III 

Heresy  and  Ecclesiastical  Institutions 
(Continued) 

The  Roman  religion  of  the  second  and  third  centuries 
gives  the  impression  of  a  mosaic  to  which  tradition,  super- 
stition, poetry,  and  a  genuine  spirit  of  inquiry  lend  their 
shares,  and  in  which  persecution  was  the  exception,  not  the 
rule.  The  repression  of  heresy  by  secular  force  therefore 
suggests  two  questions :  what  motive  for  persecution  other 
than  religious  convictions  appealed  to  the  emperors,  and 
what  change  was  wrought  in  the  tolerant  spirit  of  the  em- 
pire by  the  persecution  of  the  Christian  sects  ?  No  definite 
answers  can  be  given,  but  there  are  certain  conditions  and 
facts  which  modify  the  impressions  which  the  preceding 
legislation  may  leave  concerning  the  intolerant  influence  of 
the  church. 

In  the  first  place,  the  social  aspects  of  certain  sects  made 
them  the  subject  of  legislation.  Chief  among  these  were 
the  Manichaeans.  Their  doctrines  were  never  attractive 
to  the  multitude;  only  the  thoughtful  and  devoutly  minded 
were  drawn  into  the  sect,  says  Augustine.  The  ascetic, 
secret  character  of  their  teaching,  their  questionable  atti- 
tude toward  family  life  and  the  popular  prejudice  which  as- 
sociated with  their  services  magical  and  immoral  practices 
made  them  obnoxious.  Diocletian  ordered  them  to  be 
exiled,  their  leaders  to  be  subjected  to  capital  punishment 
and  their  property  to  be  confiscated  to  the  fiscus.^  The 
1  Codex  Gregorianus,  xiv,  4. 
54  [164 


165]  HERESY  (CONTINUED)  55 

tolerant  Valentinian  I  was  active  in  the  suppression  of  the 
magic  arts  and  so  ordered  the  Manichsean  teachers  to  be 
fined,  and  their  places  of  meeting  to  be  confiscated.^ 

Theodositis  took  from  the  Manichaeans  and  similar  ob- 
noxious sects  the  right  of  making  and  receiving  legacies, 
confiscated  their  property  bequeathed  to  their  sons,  if  these 
were  of  the  same  faith  as  their  fathers,  and  interdicted  any 
celebration  of  their  rites,  while  Valentinian  the  Younger 
forbade  their  residence  in  all  parts  of  the  Roman  world, 
especially  at  Rome,  under  penalty  of  death. ^  Their  strong- 
hold in  the  west  was  Africa,  where,  with  the  Donatists,  they 
were  the  subject  of  frequent  legislation  by  Honorius.^ 

The  social  aspects  of  the  Donatist  schism  also  made  it  a 
subject  of  legislation  in  the  later  fourth  and  early  fifth  cen- 
turies. The  emperors  from  Constantine  to  Honorius,  with 
the  exception  of  Constans,  permitted  the  Donatists  to  re- 
main unmolested.  The  edicts  of  Gratian  and  Valentinian 
which  mentioned  them  were  not  enforced  outside  of  Italy. 
But  finally  when  the  schism  broadened  from  an  ecclesiastical 
quarrel  to  a  source  of  civil  disorder,  persecution  was  re- 
sorted to. 

The  Circumcellions,  a  mendicant,  socialist  sect,  were 
appealed  to  for  aid  by  the  Donatists  at  the  time  of  the  per- 
secution of  Constans.  Northern  Africa  was  soon  infested 
with  a  body  of  religious  fanatics,  escaped  slaves,  erring 
priests  and  nuns  who  tortured  the  Catholics,  defiled  churches 
and  forced  the  laity  to  accept  Donatist  baptism.  In  395 
Theodosius  died  and  Gildo,  a  native  prince  and  friend  of  the 
Donatists,  usurped  the  administration  of  Africa.     A  period 

1  C.  Th.,  xvi,  5,  3-     Cf.  C.  Th.,  ix,  16,  7,  8,  10,  11. 

2  C.  Th.,  xvi,  5,  7,  18.  The  other  sects  were  the  Encraticae,  Apota- 
clitae,  Hydropharastitae  and  Saccafari. 

3  Cf.  the  edicts  mentioned  in  the  following  paragraphs. 


56  EDICTS  OF  THE  THEODOSIAN  CODE  [i66 

of  wild  religions  license  now  opened ;  when  Gildo  was  over- 
thrown in  398,  the  Catholics  took  vengeance  by  having 
Honorius  repeal  the  privilege  of  assemblage  given  the  Don- 
atists  by  Julian/  In  405  Honorius,  in  reply  to  a  petition 
of  an  African  council  of  the  preceding  year,  also  declared 
the  Donatists  to  be  heretics,  confiscated  their  places  of  as- 
sembly, excluded  them  from  testamentary  rights,  and  im- 
posed fines  upon  them.^ 

A  dreary  civil  war  ensued.  Upon  the  death  of  Stilicho 
in  408,  the  Donatists  claimed  that  the  laws  made  during  his 
regency  now  passed  out  of  effect.  But  Olympus,  the  suc- 
cessor of  Stilicho,  was  a  Christian,  and  in  answer  to  peti- 
tions from  Augustine  and  a  synod  of  Carthage,  the  legis- 
lation against  the  schismatics  was  confirmed.^  The 
Catholic  bishops  then  expressed  their  thanks  to  the  emperor 
and  informed  the  civil  authorities  of  the  nature  of  the  law. 
In  409,  on  account  of  the  sympathy  of  the  Donatists  for 
Attains,  the  rival  emperor  set  up  by  Alaric,  the  enforce- 
ment of  the  legislation  against  them  was  forbidden.*  But 
in  the  following  year  the  army  sent  to  Africa  by  Attains  was 
defeated,  "the  decree  which  the  followers  of  heretical  super- 
stition had  obtained  to  protect  their  rites  "  was  rescinded, 
and  "  the  penalty  of  proscription  and  death  "  was  imposed 
for  their  "  criminal  audacity  in  meeting  in  public."  ^  The 
tribune  Marcellinus  was  appointed  to  convoke  and  preside 
over  a  conference  of  Donatists  and  Catholics.  This  oc- 
curred in  June,  411 ;  the  decision  was  in  favor  of  the  Catho- 
lics, and  the  Donatists  were  ordered  to  deliver  up  their 

1  C.  Th.,  xvi,  5,  27- 

2  C.  Th.,  xvi,  5,  38,  39.  It  is  interesting  to  note  that  this  was  the 
first  state  legislation  on  heresy  approved  by  Augustine. 

3  C.  Th.,  xvi,  5,  44,  45,  46.  The  latter  seems  to  be  in  response  to 
the  synod  of  Carthage. 

*Ibid.,  5,  47.  ''Ibid.,  5,  51. 


167]  HERESY  (CONTINUED)  57 

churches  and  to  accept  the  CathoHc  faith.  Honoriiis  re- 
newed the  penalties  against  them  in  414,  branded  them 
with  perpetual  infamy,  and  in  415  threatened  with  death  all 
Donatists  who  dared  to  celebrate  their  religious  rites. ^  The 
persecution  now  began  its  final  and  most  bloody  period.  The 
Donatists  in  despair  grew  indifferent  to  life.  They  attacked 
armed  bodies  of  Catholics  and,  rather  than  fall  into  the  hands 
of  their  enemies,  often  committed  suicide.^  The  conflict 
continued  until  the  invasion  of  Africa  by  the  Vandals.  The 
persecution  of  the  church  which  the  latter  instituted,  obliter- 
ated the  rivalry  of  Donatist  and  Catholic. 

Religious  dissension  was  indeed  one  of  the  characteris- 
tics of  the  age.  Gregory  of  Nyssa  has  left  a  graphic  pic- 
ture of  mechanics  and  slaves  who  were  profound  theo- 
logians. "  If  you  desire  a  man  to  change  a  piece  of  silver 
he  infonns  you  wherein  the  Son  differs  from  the  Father, 
and  if  you  ask  the  price  of  a  loaf  you  are  told  by  way  of 
reply  that  the  Son  was  created  out  of  nothing."  ^ 

Some  interference  in  religious  matters  by  the  state  was 
therefore  only  natural,  perhaps  unavoidable;  but  while  the 
legislation  regarding  heresy  is  abundant,  the  information 
regarding  its  execution  is  meager.  Sozomenus  says  of 
Theodosius  that,  "  great  as  were  the  penalties  adjudged  by 
the  laws  against  heretics,  they  were  not  always  carried  into 
execution,  for  the  emperor  had  no  desire  to  persecute  his 
subjects,  he  desired  only  to  enforce  uniformity  of  belief 
about  God  through  the  medium  of  intimidation."  •*     If  the 

1  C.  Th.,  xvi,  5,  55  (of  412)  ;  54  (of  414)  ;  55  confirms  the  penalties 
imposed  during  the  administration  of  Marcellinus,  its  occasion  being 
the  appointment  of  a  new  governor  of  Africa.     Cf.  56,  57,  58. 

2  Augustine,  Ep.,  185. 

3  Oratio  de  Filio  et  Spiritu  Sanctii.     Migne,  Pat.  Lat.,  vol.  xlvi,  p.  357. 
*  H.  E.,  vii,  12. 


^8  EDICTS  OF  THE  THEODOSIAN  CODE  [i68 

edicts  of  Tlieodosius  were  not  rigorously  enforced,  what 
must  be  said  of  the  legislation  of  his  inefficient  successors? 
No  special  courts  were  established  for  the  prosecution  of 
heretics.  The  laws  against  them  were  executed  through 
the  public  tribunals/  As  the  civil  officers  were  not  skilled 
in  matters  of  doctrine,  the  guilty  must  have  escaped  punish- 
ment by  their  ability  to  quibble  and  play  with  ecclesiastical 
words  and  phrases.  This  probably  accounts  for  an  edict  of 
Arcadius  which  speaks  of  those  who  by  slight  arguments 
deviate  from  the  standards  of  the  Catholic  religion.^  The 
acceptance  of  an  orthodox  creed  would  therefore,  according 
to  a  law  of  Honorius,  quash  all  prosecution  for  heresy.^ 

1  There  is  one  edict  which  provides  for  special  tribunals  for  heresy. 
It  authorizes  the  pretorian  prefect  to  appoint  inquisitors,  open  a  forum 
and  receive  reports  of  denunciators  vi^ithout  the  dishonor  of  delation. 
C.  Th.,  xvi,  5,  g.  But  there  is  no  information  regarding  the  execution 
of  the  edict.     Its  purpose  was  probably  to  intimidate. 

2  C.  Th.,  xvi,  5,  28.  Haereticorum  .vocabulo  continentur  et  latis  ad- 
versus  eos  sanctionibus  debent  succumbere,  qui  vel  levi  argumento  a 
iudicio  catholicae  religionis  et  tramite  detecti  fuerint  deviare.  Ideoque 
experientia  tua  Euresium  haereticum  nee  in  numero  sanctissimorum 
antistitum  habendum  esse  cognoscat  (39S). 

3  C.  Th.,  xvi,  5,  41.  Licet  crimina  soleat  poena  purgare,  nos  tamen 
pravos  hominum  voluntates  admonitione  poenitentiae  volumus  emendare. 
Quicunque  igitur  haereticorum,  sive  Donatistae  sint  sive  Manichaei  vel 
cuiuscunque  alterius  pravae  opinionis  ac  sectae,  profanis  ritibus  aggre- 
gati  catholicam  fidem  et  ritum,  quem  per  omnes  homines  cupimus 
observari,  simplici  confessione  susceperint  licet  adeo  inveteratum  malum 
longa  ac  diuturna  meditatione  nutriverint,  ut  etiam  legibus  ante  latis 
videnatur  obnoxii :  tamen  hos,  statim  ut  fuerint  Deum  simplici  religione 
confessi,  ab  omni  noxa  absolvendos  esse  censemus,  ut  ad  omnem  re- 
atum,  seu  ante  contractus  est,  seu  postea,  quod  volumus,  contrahitur, 
etiamsi  maxime  reos  poena  vidatur  urgere,  sufficiat  ad  abolentionem, 
errorem  propio  damnavisse  iudicio,  et  Dei  omnipotentis  nomen,  inter 
ipsa  quoque  pericula  requisitum,  fuisse  complexum,  quia  nusquam  debet 
in  misseriis  invocatum  religionis  deesse  subsidium.  Ut  igitur  priores 
quos  statuimus,  leges  in  excidium  sacrilegarum  mentium  omni  exse 
cutionis  argeri  iubemus  efifectu,  ita  hos,  qui  simplicis  fidem  religionis, 
licet   sera    confessione,   maluerint,    censem.us    datis    legibus   non   teneri. 


169]  HERESY  (CONTINUED)  59 

Finally,  the  interference  of  the  state  in  matters  of  faith 
was  a  problem  to  the  church  fathers  of  the  third  and  fourth 
centuries.  Tertullian,  early  in  the  third  century,  declared 
that  it  is  "a  fundamental  human  right,  a  privilege  of  nature, 
that  every  man  should  worship  according  to  his  own  convic- 
tions; it  is  assuredly  no  part  of  religion  forcibly  to  impose 
religion,  to  which  free  will  and  not  force  should  lead  us."  ^ 
Lactantius,  a  contemporary  of  Constantine,  also  laid  down 
the  principle  that  "  religion  can  not  be  imposed  by  force; 
if  you  wish  to  defend  religion  by  bloodshed  and  by  torture 
and  by  guilt,  it  will  no  longer  be  defended  but  will  be  pol- 
luted and  profaned."  ^  Chrysostom,  living  in  a  later 
period,  when  the  alliance  of  church  and  state  had  further 
developed,  approved  the  withdrawal  of  the  right  of  assem- 
blage from  heretics  and  the  confiscation  of  their  property, 
but  he  also  recommended  that  Christian  love  be  shown 
them.^  It  was  only  gradually  that  Augustine,  who  moulded 
Christian  thought  in  the  west,  was  reconciled  to  enforced 
conformity  to  the  Catholic  faith.  Long  acquaintance  with 
the  Donatists,  failure  to  convert  them  by  argument,  and  the 
formulation  of  his  theory  of  the  Christian  state  led  him, 
after  the  year  400,  to  decide  that  though  it  is  "  better  that 
men  should  be  brought  to  serve  God  by  instruction  than  by 
fear  or  punishment,"  the  latter  means  must  not  be  neglected.* 

Quae  ideo  sanximus  quo  universi  cognoscant,  nee  profanis  hominum 
studiis  deesse  vindictam  et  ad  rectum  redundare  cultum,  legum  quoque 
adesse  suffragium  (407). 

1  Ad  Scap.,  2 ;  cf.  Apoi,  24. 

^  Div.  Inst.,  V,  2;  cf.  Schaff,  Progress  of  Religious  Freedom,  pp.  5,  6. 

3  Horn,  xxix  and  xlvi  in  Matt. 

■*  Ep.  185.  In  his  Con.  Gaud.  Don.,  i,  20,  he  advances  the  idea  that 
if  the  state  is  not  permitted  to  punish  religious  error,  it  cannot  punish 
any  other  error,  for  religious  error  like  secular  crime  proceeds  from 
the  evils  of  the  flesh.  Cf.  Ep.,  123,  for  the  evolution  of  his  ideas  on 
heresy. 


6o  EDICTS  OF  THE  THEODOSIAN  CODE  [170 

The  case  frequently  cited  as  typical  of  the  conditions 
and  opinions  of  the  age  regarding  the  treatment  of 
heretics,  is  the  execution  of  Priscillian  and  the  persecu- 
tion of  his  followers.  In  384  Priscillian  was  condemned 
by  the  synod  of  Bordeaux  for  teachings  tainted  with 
Manichreism.  He  then  appealed  to  Maximus,  the  usurping 
Augustus  of  the  west.  Martin  of  Tours  and  the  better 
element  of  the  Gallic  church  were  alarmed,  for  to  them  it 
was  sufficient  "  that  condemned  heretics  be  driven  from  the 
church  by  episcopal  sentence,"  and  it  was  "  a  new  and  un- 
heard-of crime  that  the  secular  judge  should  hear  a  case  of 
the  church."  They  therefore  advised  Ithacus,  the  ecclesias- 
tic pressing  the  case  against  Priscillian,  to  desist  from  prose- 
cution in  a  secular  court,  and  Maximus  "  to  abstain  from 
the  shedding  of  blood."  But  their  protest  was  without 
effect.  Maximus  appointed  the  Prefect  Ennodius  to  con- 
duct the  trial  and  in  a  "  twin  judgment  "  Priscillian  was 
found  guilty  of  magic.  After  confirmation  of  the  sentence 
by  Maximus  and  a  repetition  of  the  procedure,  Priscillian 
was  put  to  death  by  the  sword,  and  a  number  of  his  follow- 
ers were  executed  or  exiled.^  The  severity  of  the  perse- 
cution as  well  as  the  violation  of  the  law  and  custom  that 
criminal  charges  against  bishops  should  be  examined  by 
a  synod  before  action  by  the  civil  authorities,  made  it  re- 
pulsive to  the  more  prominent  ecclesiastics  of  the  west. 
Ambrose,  Martin  of  Tours  and  Pope  Siricius  expressed 
their  disapproval  and  refused  fellowship  with  Ithacus  and 
his  followers. 

Not  till  the  fifth  century,  when  Germanic  revolutions  and 
invasions  caused  constant  disorder  and  the  administrative 
system  was  less  efficient  than  ever,  was  the  death  penalty 

1  The  source  for  the  persecution  of  Priscillian  is  Sulpicius  Severus. 
Chronicon,  ii,  46,  5. 


Ijl]  HERESY  (CONTINUED)  6 1 

for  heresy  justified  by  ecclesiastical  theory.  Then  Leo  I, 
who  secured  imperial  recognition  of  the  authority  of  Rome 
over  other  churches  of  the  west  and  anticipated  the  dog- 
matic arguments  by  which  the  papacy  was  later  defended, 
approved  the  work  of  Maximus — indeed  he  "  accepted  as  a 
duty  the  suppression  of  heresy  and  raised  no  objection  to 
legislation  which  treated  heresy  as  a  crime  against  civil 
society,  and  declared  it  punishable  with  death."  ^  The 
legislation  of  the  emperors  therefore  furnished  a  precedent 
for  later  ages,  rather  than  a  condition  of  constant  and  active 
persecution,  and  the  opinion  of  the  leading  ecclesiastics  re- 
garding secular  intervention  in  matters  of  faith  was  clearly 
not  unanimous. 

When  the  church  began  to  supplant  paganism,  and  non- 
conformity to  its  standards  of  faith  caused  the  ejection  of 
guilty  clerks  from  their  churches  and  brought  legal  dis- 
abilities to  the  laity,  ecclesiastical  institutions  naturally  be- 
came a  subject  of  legislation. 

There  is  no  better  example  of  the  strong  influence  which 
ecclesiastical  ideas  exercised  at  the  imperial  court  than  the 
edicts  which  forbid  repetition  of  sacred  baptism.^  Since 
that  sacrament  was  believed  to  purify  the  recipient  from  the 
guilt  of  previous  sins,  the  Donatist  theory  of  the  inefficacy 
of  sacraments  administered  by  polluted  hands  was  a  vital 
problem  in  the  life  of  the  church.  While  Valentinian  would 
not  proscribe  heretics,  he  declared  in  reply  to  a  petition  of 
Gallic  bishops  that  "  the  priest  who  repeats  the  rite  of  bap- 
tism and,  contrary  to  all  canons,  defiles  that  sacrament  by 
repetition,  is  unworthy  of  the  priesthood."  ^  Gratian  also 
condemned  "  the  error  of  those  who,  despising  the  precepts 
of  the  apostles,  abuse  the  Christian  sacraments  by  rebaptiz- 

1  Chreighton,  Persecution  and  Tolerance,  pp.  76,  yy. 

2  C.  Th.,  xvi,  6.  3  C.  Th.,  xvi,  6,  i. 


62  EDICTS  OF  THE  THEODOSIAN  CODE  [172 

ing "  and  ordered  their  churches  to  be  delivered  to  the 
Catholics  and  their  secret  places  of  meeting  to  be  confiscated 
to  the  fiscus/  In  the  same  year  that  Honorius  began  his 
stringent  legislation  against  the  Donatists,  he  issued  three 
edicts  against  the  rebaptizers,  while  the  first  edicts  of  Theo- 
dosius  the  Younger  on  heresy  were  directed  against  the 
Novatians,  the  rebaptizers  of  the  east." 

The  extent  to  which  clerical  conceptions  of  life  might  in- 
filtrate Roman  culture  is  well  illustrated  by  the  legislation 
on  celibacy.  There  was  a  strong  feeling  in  the  early  church, 
largely  Gnostic  in  origin,  that  the  sexual  relation  involved 
sin,  but  marriage  of  the  clergy  was  never  forbidden  in 
apostolic  times.  Some  of  the  sects  went  so  far  as  to 
reject  the  institution  of  marriage  and  by  the  fourth 
century  it  was  generally  held  that  the  celibate  life  was 
superior  to  the  marital.  In  recognition  of  this  sentiment 
Constantine  repealed  the  disabilities  which  the  Roman  law 
had  imposed  on  the  celibate  and  gave  to  minors  who  ex- 
pressed the  intention  of  remaining  celibate  permission  to 
make  testaments.  Constantius  denied  to  violators  of  sacred 
virgins  any  escape  from  the  penalty  of  the  law,  while  Jovian 
made  any  attempt  to  seize  consecrated  virgins  or  widows  for 
the  purpose  of  marriage,  even  with  their  consent,  a  capital 
offence,  and  withdrew  from  children  of  such  a  union  their 
right  of  succession  to  parental  property.* 

The  relation  of  celibacy  to  clerical  orders  was  also  a  sub- 
ject of  legislation.     In  the  west,  the  radical  opinion  regard- 

1  C.  Th.,  xvi,  2.  2  ijjid,^  3,  4,  5,  6,  7. 

3  C.  Th.,  viii,  16,  I.  Soz.,  i,  9.  The  law  referred  to  was  the  Lex 
Poppaea,  enacted  by  Augustus.     Tacitus,  Annul,  iii,  25. 

*C.  Th.,  ix,  25,  I  (Constantius).  The  Roman  law  provided  that  if 
the  violated  woman  should  withdraw  the  accusation,  the  prosecution 
should  end.  Constantius  made  escape  from  the  penalty,  which  was 
death,  impossible.     Ibid.,  ix,  25,  2   (Jovian). 


173]  HERESY  (CONTINUED)  63 

ing  the  sexual  relation  of  the  clergy  was  first  expressed  at 
the  synod  of  Elvira  in  306.  There  it  was  required  that 
bishops,  priests  and  all  clerks  should  abstain  from  their 
wives  and  should  not  beget  children.  This  rule,  however, 
was  not  observed,  and  the  marriage  of  clerks  was  recognized 
in  the  legislation  of  Constantius  and  Theodosius.^  But 
in  the  later  part  of  the  fourth  century  the  celibacy  of  the 
clerg}'  was  agitated  by  the  papacy,  and  consequently  African 
and  Spanish  councils  required  clerks  who  engaged  in  the 
administration  of  the  sacraments  to  separate  from  their 
wives  and  forbade  the  promotion  in  orders  of  those  who 
were  fathers  of  children.^  This  legislation  aroused  much 
opposition.  In  Italy,  Gaul  and  Spain  many  Christians  held 
to  the  sanctity  and  purity  of  the  marital  relation  and  were 
consequently  persecuted.  Among  them  was  Jovinian,  who 
denied  the  value  of  the  celibate  life.  He  was  scourged 
and  driven  from  Rome,  and  his  followers  deported  by 
Honorius  in  412.^  However,  actual  separation  of  husband 
and  wife  who  had  been  married  before  ordination  was  not 
required,  only  abstinence  from  sexual  intercourse.  Conse- 
quently, many  of  the  clergy  at  the  time  of  ordination  desig- 
nated their  wives  as  sisters  and  so  continued  to  live  with 
them.  Abuse  of  this  custom  and  the  protection  of  exist- 
ing marriages  led  Honorius  in  420  to  forbid  clerks  of  all 
grades  to  associate  with  "foreign  women"  (namely,  all 
except  mothers,  daughters  and  blood  relatives),  and  to  state 
that  celibacy  did  not  require  the  divorce  of  wives  wedded 

1  C.  Th.,  xvi,  2,  9,  10,  II,  14;  V,  3. 

2  Con.  Carth.,  II,  2;  V,  3 ;  Con.  Toledo  (400)  ;  Lea,  History  of  Sacer- 
dotal Celibacy,  ch.  v. 

8  C.  Th.,  xvi,  5,  S3.  Another  edict  of  Honorius  in  420,  which  pun- 
ished with  deportation  any  one  who  looks  upon  a  sacred  virgin  as  a 
violator,  probably  refers  to  the  Jovinians.  Cf.  Godefroy,  C.  Th.,  ix, 
25,  3- 


64  EDICTS  OF  THE  THEODOSIAN  CODE  [174 

before  entrance  to  the  priesthood — a  rule  which,  frequently 
cited  by  the  councils,  became  the  formal  custom  of  the 
early  middle  ages/ 

The  political  and  social  power  acquired  by  the  bishops, 
as  well  as  the  enforced  conformity  to  standards  of  faith, 
made  their  election  in  the  days  of  the  later  Roman  Empire, 
as  in  the  Middle  Ages,  a  matter  of  public  importance. 

With  the  transition  from  the  conception  of  the  episcopacy 
as  an  administrative  office  to  an  institution  ordained  by 
God,  the  consent  of  neighboring  bishops  as  well  as  the 
choice  of  the  people  became  necessary  for  investiture  with  its 
rights  and  duties.  Consequently  the  election  of  patriarchs 
was  often  the  occasion  of  an  ecclesiastical  synod  and 
the  emperors,  through  their  relation  to  synods,  which  they 
often  convened  and  attended,  might  exercise  a  direct  influ- 
ence on  elections.  Constantine  wrote  to  the  council  and 
people  of  Antioch  not  to  choose  Eusebius  of  Csesarea  bishop 
of  that  city.^  Constantius  convened  "an  assembly  of  bishops 
of  Arian  sentiment  "  and  deposed  Paul  of  Constantinople. 
It  is  also  probable  that  he  deposed  other  bishops  by 
similar  methods.^  Valens  ejected  Eleusius,  by  an  edict, 
and  installed  Eunomius  as  bishop  of  Cyzicus,  and  there  are 
other  instances  of  the  Arian  clergy  securing  investiture  of 
their  bishops  through  imperial  favor  during  his  reign.* 

In  the  west  Valentinian  I  instituted  a  new  policy.  Visit- 
ing Milan  in  374  he  found  a  synod  assembled  to  elect  a  suc- 
cessor to  Auxentius,  the  deceased  bishop  of  the  city.  The 
synod  asked  him  "  by  his  wisdom  and  piety  "  to  choose  a 

1  C.  Th.,  xvi,  2,  44.  The  first  part  of  this  edict  is  similar  to  the 
third  canon  of  Nicea.  The  latter  part  is  the  rule  of  the  Roman  church, 
as  stated  by  Leo  I,  Ep.,  clxvii,  in.  3;  Loning,  Gesch.  des  dciitschen 
Kirchenrechts.,  vol.  i,  p.  181. 

2  Euseb.,  Vita,  60,  62.  ^  Soc,  ii,  7 ;  Soz.,  iii,  4 ;  iv,  27. 
4  Soc,  iv,  7,  15;  Soz.,  vi,  13,  14;  Theod.,  iv,  15. 


175]  HERESY  (CONTINUED)  65 

new  bishop.  He  replied,  "  That  is  an  affair  beyond  my 
strength.  You,  who  are  ordained  with  divine  grace  and  are 
ilhimined  by  its  splendor,  can  decide  better  than  I."  The 
result  was  the  election  of  Ambrose,  a  catechumen  and  a 
secular  official,  who  formulated  the  clerical  theory  of  the 
immunity  of  the  church  from  any  secular  control.^  This 
policy  of  non-intervention  in  ecclesiastical  affairs  was  con- 
tinued by  Gratian,  and  Honorius,  in  deciding  the  contest  of 
Eulalius  and  Boniface  for  the  bishopric  of  Rome,  made  it 
definitely  the  policy  of  the  state  in  disputed  elections. 

When  Pope  Zosimus  died  in  418,  the  efforts  to  choose 
a  successor  resulted  in  a  double  election.  Honorius,  in- 
fluenced by  the  report  of  the  city  prefect,  believed  that 
Eulalius  was  canonically  elected  and  therefore  banished 
Boniface.  But  the  friends  of  the  defeated  candidate  ap- 
pealed to  the  emperor  in  his  behalf  and  Honorius  ordered 
his  case  to  be  re-opened  at  a  synod  to  be  held  at  Rome. 
When  the  synod  failed  to  make  a  decision,  Honorius  or- 
dered another  hearing  at  Spoleto  and  forbade  either  of  the 
rival  candidates  to  return  to  Rome  in  the  meantime.  Eula- 
lius disregarded  this  order  and  Honorius  promptly  banished 
him  and  declared  Boniface  the  legitimate  Bishop  of  Rome. 
To  provide  for  similar  cases  in  the  future,  Honorius  now 
issued  an  edict  which  declared  that  neither  candidate  of  a 
double  election  should  be  installed  in  office,  but  that  one 
"  should  remain  in  the  apostolic  seat  whom  the  divine  judg- 
ment and  universal  consent  shall  choose  in  a  new  election."  - 

1  Theod.,  iv,  5,  6;  Soc,  iv,  30.  The  account  of  Socrates  clearly 
shows  that  it  was  customary  for  the  emperor  to  influence  elections. 
Theodoret  adds  that  the  baptism  and  ordination  were  by  order  of  the 
emperor.  This  and  the  fact  that  Ambrose  was  a  civil  officer  are  re- 
sponsible for  the  popular  opinion  that  imperial  influence  caused  his 
election. 

-  Haenel,  Corpus  Lcgum,  p.  239 ;  Langen,  Gesch.  der  romischen  Kirchc, 
vol.  i,  p.  763. 


66  EDICTS  OF  THE  THEODOSIAN  CODE  [ly^ 

In  the  east,  imperial  participation  in  elections  continued. 
Arcadius,  with  the  consent  of  the  people  and  clergy,  called 
Chrysostom  to  the  seat  of  Constantinople.^  After  the  death 
of  Sisinnius  none  of  the  candidates  found  favor  with 
Theodosius  the  Younger  and  he  caused  Nectorius  of 
Antioch  to  be  invested  with  the  patriarchate."  Under 
Marcian  and  Leo  elections  were  free,  but  Zeno  and  Justin 
again  made  the  episcopacy  a  part  of  their  political  patron- 
age, while  Justinian's  legislation  is  notable  for  the  absence 
of  any  prohibition  of  political  influence  in  elections.*  The 
result  of  these  conditions  was  the  formation  of  an  intimate 
relation  between  church  and  state  in  the  east.  The  church 
became  subservient  to  the  state,  to  whose  interests  its  ideals 
and  work  were  deemed  vital;  while  the  independence  of 
the  church  from  temporal  control  became  the  working 
theory  in  the  west — conditions  of  much  significance  in  the 
separation  of  the  eastern  and  western  churches. 

The  relation  of  the  Bishop  of  Rome  to  the  other  eccles- 
iastical authorities  in  the  west  was  also  a  subject  of  civil 
legislation  which,  like  that  on  elections,  was  not  incorpor- 
ated in  the  Theodosian  code. 

The  participation  and  leadership  of  the  Papacy  in  eccles- 
iastical affairs  during  the  fourth  century,  and  the  attitude  of 
the  church  toward  the  Roman  See  are  obscure  and  inde- 
finite. The  Council  of  Nicea  designated  Rome  as  a  patriarch- 
ate, but  it  did  not  state  the  extent  of  the  jurisdiction  of  the 

1  Soc,  vi,  2. 

2  Soc,  vii,  30 ;  cf.  39.     Nicephorus,  xiv,  47. 

3  Nov.,  Ixxiii,  c.  i ;  cxxviii,  c.  2.  For  elections  in  which  Justinian 
exercised  an  influence,  cf.  Staudenmeier,  Gesch.  der  Bischofswahlen,  p. 
46.  This  continual  interference  of  the  eastern  emperors  in  episcopal 
elections  explains  the  omission  of  the  edict  of  Honorius  from  the  Theo- 
dosian ccxie. 


177]  HERESY  (CONTINUED)  67 

Roman  over  other  churches/  Eighteen  years  later  the  coun- 
cil of  Sardica  declared  that  a  bishop  deposed  by  a  provincial 
synod  might  appeal  to  the  Bishop  of  Rome,  who  should  then 
convene  a  new  synod  to  investigate  his  case.  But  no  means 
for  enforcing  the  decision  of  the  synod  or  for  reinstating  the 
deposed  bishop  were  prescribed ;  moreover,  Sardica  did  not 
represent  the  opinion  of  the  entire  church,  and  as  Constan- 
tius  w^as  hostile  to  the  Athanasian  clergy,  its  canons  were 
not  observed.^  However,  late  in  the  century,  when  the 
Athanasian  party  had  acquired  abiding  influence  at  the  im- 
perial court,  Gratian  defined  the  authority  of  the  Bishop  of 
Rome  among  the  churches  in  terms  very  similar  to  the  legis- 
lation of  Sardica. 

The  condition  that  gave  rise  to  this  definition  of  power 
was  the  double  election  of  Damasus  and  Ursinus  to  the  See 
of  Rome  which  soon  extended  from  an  ecclesiastical  quarrel 
to  an  armed  conflict  in  which  blood  was  shed.  The  civil 
authorities  called  the  clerks  to  account  for  their  disturbance 
of  the  peace,  but  Valentinian  I  issued  an  edict,  often  cited 
by  ecclesiastical  authorities,  that  clerks  should  be  heard  only 
by  clerks  in  matters  of  faith. ^  Yet  the  emperor,  in  response 
to  petitions  of  Damasus  and  his  party,  twice  banished  Ur- 
sinus. That  unfortunate  prelate  had,  however,  such  a  strong 
following  in  Rome  and  southern  Italy  that  when  Gratian  be- 
came sole  administrator  of  the  west  in  375,  the  emperor 
deemed  it  necessary  to  renew  the  ban  against  him,  and  five 
years  later  he  confirmed  the  election  of  Damasus  in  an  edict 
which   was   probably  issued  at   the  instance  of  a  Roman 

1  Can.  Nicca,  6.  Rufinus,  H.  E.,  i  .make  the  jurisdiction  of  Rome 
extend  over  the  Suburbicarian  provinces.  This  was  the  territory  pre- 
sided over  by  the  prefectus  urbi,  but  the  jurisdiction  of  the  Pope  prob- 
ably included  more  than  this.  Cf.  Hefele,  Concilicn  Gcschichte,  vol.  i, 
p.  388 ;  Loning,  Gesch.  des  deutschen  Kirchenrcchts,  vol.  i,  p.  436. 

2  C.  Sardica,  can.  3,  4.  5-  "  Ambrose,  Ep.,  xxi,  2. 


68  EDICTS  OF  THE  THEODOSIAN  CODE  [178 

synod.  It  declared  that  the  sentence  against  one  who  "  un- 
justly wishes  to  retain  his  church  "  after  being  "  condemned 
by  the  judgment  of  Damasus,  given  with  the  advice  of 
five  or  seven  bishops,"  shall  be  enforced  by  the  civil  author- 
ities; and  that  in  future  all  disturbances  in  the  churches  of 
distant  parts  shall  be  decided  by  the  metropolitan,  or,  if 
the  metropolitan  himself  is  concerned,  the  case  shall  go 
to  Rome  ''  or  before  him  whom  the  Roman  bishop  shall 
indicate  as  judge;"  and  that  if  any  priest  or  metropolitan 
is  suspended  unjustly,  he  may  appeal  to  the  Roman  bishop 
or  a  council  of  fifteen  neighboring  bishops/  Two  years 
later  Theodosius,  as  we  have  seen,  urged  upon  his  subjects 
the  acceptance  of  the  faith  professed  by  Rome;  while  the 
council  of  Constantinople  in  381  gave  the  Bishop  of  Rome 
precedence  over  all  other  bishops. 

A  final  and  more  definite  statement  of  the  authority  of 
the  Papacy  was  made  in  the  fifth  century  by  Valentinian  III. 
Its  purpose  was  to  settle  the  rivalry  of  Aries  and  Rome  for 
the  ecclesiastical  leadership  of  the  west,  a  rivalry  which  was 
closely  related  to  the  political  conditions  of  the  age. 

The  military  rebellions  and  depredations  of  the  Germans 
in  Gaul  during  the  later  fourth  and  early  fifth  centuries  were 
a  menace  to  the  ecclesiastical  as  well  as  the  civil  administra- 
tion. Therefore  the  Gallic  clergy  sought  to  form  more  in- 
timate relations  with  Rome,  and  Innocent  I  took  advantage 
of  this  situation  to  claim  for  the  See  of  Rome  the  highest 
judicial  authority  in  the  church.  But  in  the  reorganization 
of  the  Gallic  provmces  after  the  overthrow  of  Constantine 

1  Mansi,  iii,  627.  It  is  sometimes  claimed  that  the  edict  of  Valen- 
tinian extended  the  jurisdiction  of  the  Bishop  of  Rome.  This  is  hardly 
true.  He  simply  gave  the  church  authorities  the  right  to  decide  eccle- 
siastical cases,  while  Gratian  added  the  enforcement  of  ecclesiastical 
decisions  by  the  secular  authorities.  The  present  edict  concerning  the 
Bishop  of  Rome  was  not  observed  in  the  church. 


179]  HERESY  (CONTINUED)  69 

the  Usurper  in  411,  Constantius,  Master  of  Horse  under 
Honorius,  attempted  to  make  Aries  the  centre  of  ecclesiastical 
as  well  as  of  political  administration.  In  this  plan  he  was 
supported,  doubtless  for  political  reasons,  by  Pope  Zosimus, 
who  informed  the  Gallic  clergy  that  the  Bishop  of  Aries  had 
the  exclusive  right  to  ordain  bishops  in  the  provinces  of 
Vienne  and  Narbonne  I  and  II,  and  supported  Patroclus 
of  Aries  in  establishing  his  authority  over  the  Bishop 
of  Marseilles/  But  after  the  death  of  Constantine  there 
was  a  change  in  the  attitude  of  the  papacy  toward  the  lead- 
ership of  Aries.  Boniface  I  lent  a  willing  ear  to  the  appeal 
of  the  clerks  of  Luteva  who  questioned  the  legality  of  the 
ordination  of  their  bishop  by  Patroclus;  and  Coelestinus 
applied  to  conditions  in  Gaul  the  rule  of  Nicea,  that  each 
metropolitan  should  be  content  with  his  own  province." 

The  decisive  period  of  this  rivalry  between  Rome  and 
Aries  was  in  the  pontificate  of  Leo  I.  The  political  disorder 
which  followed  the  capture  of  Toulouse  by  the  Visigoths  in 
419  and  the  constant  menace  of  the  Franks  and  Burgund- 
ians  on  the  northern  frontier  of  Gaul  resulted  in  ecclesiasti- 
cal as  well  as  political  confusion.  The  unity  of  the  Gallic 
church,  which  represented  social  as  well  as  religious  inter- 
ests, was  threatened.  Hilary,  bishop  of  Aries,  therefore 
resorted  to  extreme  measures  to  realize  Patroclus's  ideal 
of  an  independent,  unified  Gallic  church  under  the  leader- 
ship of  Aries.  He  held  synods,  ordained  and  deposed 
bishops  of  other  provinces  than  his  own,  and  was  probably 
assisted  by  the  civil  authorities.^  In  444  he  caused  the  de- 
position of  Celidonius,  bishop  of  Besangon,  on  charges  of 

1  Zos.,  £/>.,  i.  Cf.  Constitutioncs  Sirmondi,  vi,  in  which  Valentinian 
III  recognizes  the  authority  of  Aries.  (Haenel,  Corpus  Juris  Ante 
Justinianae,  vol.  iii.) 

2  Bon.,  Ep.,  xii;  Colest.,  £/>..  iv  ;  Loning,  op.  cit.,  vol.  i,  p.  472. 

3  No7>.  Vol.,  iii,  16. 


70  EDICTS  OF  THE  THEODOSIAN  CODE  [i8o 

marrying  a  widow  and  of  rendering  a  sentence  of  death  be- 
fore his  ordination  to  the  episcopacy.  Celidonius  ap- 
pealed to  Leo.  Witnesses  were  found  who  testified  that  the 
charges  were  false,  and  a  Roman  synod  convoked  by  Leo 
declared  Celidonius  innocent  and  restored  to  him  his  epis- 
copal rights  and  honors. 

This  is  the  first  instance  of  the  bishop  of  Rome  exercising 
disciplinary  authority  over  another  metropolitan.  The 
right  to  appeal  through  him  to  a  synod  had  been  granted  at 
Sardica,  but  not  the  authority  to  enforce  the  synod's  decis- 
ion. Knowing  that  the  claims  of  Aries  had  had  the  sup- 
port of  the  civil  power  in  Gaul,  Leo  forestalled  any  actions 
thereby  in  behalf  of  Hilary  by  securing  an  imperial  con- 
firmation of  the  authority  he  had  assumed.  In  an  edict 
Valentinian  recognized  the  Bishop  of  Rome  as  the  primate 
of  the  church,  declared  Hilary's  investiture  of  bishops  an 
offence  "against  the  majesty  of  the  empire  and  the  honor 
of  the  apostolic  see,"  forbade  any  deviation  from  ecclesias- 
tical custom  without  "  the  authority  of  the  venerable  Pope 
of  the  Eternal  City,"  and  ordered  the  secular  officials  to 
enforce,  if  necessary,  the  obedience  of  bishops  to  a  citation 
to  "  the  court  of  the  Roman  bishop."  ^ 

Thus,  as  the  empire  declined,  the  autonomy  of  the  church, 
its  independence  from  secular  control  and  the  leadership  of 
the  Bishop  of  Rome  as  its  supreme  head  and  authority  were 
recognized  in  the  jurisprudence  of  the  west.  The  signifi- 
cance of  this  policy,  the  sanction  by  the  empire  of  a  social 
and  political  force  which  was  to  supplant  it  in  the  direction 
of  human  destinies,  is  more  fully  realized  by  a  consideration 
of  the  purely  secular  phases  of  the  ecclesiastical  legislation 
preserved  in  the  code  of  Theodosius. 

1  Nov.  Vol.,  iii,  i6.  The  conditions  and  events  in  Gaul  during  the 
period  of  the  controversy  of  Rome  and  Aries  are  obscure.  I  have  fol- 
lowed Loning,  G.  d.  d.  K.,  vol.  i,  pp.  463-499. 


CHAPTER  IV 

The  Relation  of  the  Church  to  the  Social  Organ- 
ization OF  the  Empire 

The  relation  of  the  church  to  the  economic  and  social 
structure  of  society  has  long  been  a  problem  of  practical 
as  well  as  speculative  interest.  The  exemption  of  its  prop- 
erty from  taxation  and  its  corporate  privileges,  the  immun- 
ity of  its  officials  from  services  to  the  state,  the  claim  of  its 
courts  to  exclusive  jurisdiction  over  the  litigation  of  all  its 
servants — these  problems  of  mediaeval  and  modern  gov- 
ernment have  their  origin  in  the  generosity  of  the  Roman 
emperors.  Indeed,  their  liberality  speedily  resulted  in  un- 
foreseen perplexities  with  which  legislation  was  not  able 
to  cope. 

In  the  fourth  century  Roman  economic  and  administra- 
tive development  reached  a  crisis.  Political  centralization, 
the  establishment  of  a  system  of  public  works,  the  main- 
tenance of  a  great  army  and  the  extravagance  of  the  em- 
perors had  increased  the  amount  and  variety  of  taxation  to 
such  an  extent  that,  by  the  opening  of  the  fourth  century, 
the  farmers,  in  many  places,  could  not  afford  to  till  the  soil, 
nor  the  artisans  to  continue  their  industries.  There  were 
two  possible  remedies  for  the  situation :  a  radical  change  in 
the  existing  administrative  policy  or  the  maintenance  of  ex- 
isting conclitions  through  central  control  and  governmental 
guidance  of  individual  activity.  The  latter  course  was 
adopted  by  Diocletian  and  Constantine.  Their  solution  of 
the  economic  problem  was  to  force  the  individual,  who  could 
i8i]  71 


72  EDICTS  OF  THE  THEODOSIAN  CODE  [182 

no  longer  work  for  his  own  advantage,  to  work  for  that  of 
the  state.  They  therefore  assumed  control  of  industries  and 
prevented  the  amelioration  of  the  fortune  of  the  citizen  by- 
making  professions  hereditary.  The  soldiers  in  the  army, 
the  workmen  in  the  mines,  the  coloni  on  the  plantations,  as 
well  as  the  higher  classes,  were  bound  to  their  positions  in 
life,  and  their  sons  inherited  their  duties  and  obligations.^ 

The  caste-like  organization  which  society  was  gradually 
assuming  is  well  illustrated  by  the  fate  of  the  curiales. 
Originally  they  were  members  of  the  municipal  senates  com- 
posed mainly  of  those  who  had  held  offices;  but  with  the 
centralization  of  government  and  the  increasing  need  for 
revenue  their  ranks  were  recruited  through  appointments 
made  by  the  imperial  officials,  and  finally  Constantius,  in  342, 
made  the  curial  order  include  all  land-holders  of  fifty  acres." 

The  significance  of  this  legislation  is  realized  when  the 
obligations  of  the  curiales  are  examined.  In  addition  to 
taxes  on  property  and  the  responsibilities  of  local  adminis- 
tration, they  were  burdened  by  obligations  to  the  central 
government.  These  were  the  munera,  or  liability  for  ser- 
vices on  the  roads  and  public  works,  etc. ;  the  duty  of  ap- 
portioning and  collecting  the  taxes  levied  by  the  imperial 
fiscus,  and  the  responsibility  for  all  deficiencies  in  the 
revenue  which  they  were  required  to  collect.  Therefore, 
the  duties  of  the  curiales  were  made  hereditary,  from  which 
escape  was  only  possible  after  an  individual  had  gone 
through  the  routine  of  all  official  duties  to  which  his  mem- 
bership in  the  curial  class  might  make  him  liable.  Then 
he  might  enter  the  new  senatorial  order  created  by  the 

1  There  is  an  excellent  summary  of  these  conditions  by  Wm.  A. 
Brown  in  The  Political  Science  Quarterly,  vol.  ii,  no.  3,  under  the  title, 
"  State  Control  of  Industry  in  the  Fourth  Century." 

2  Marquardt,  Romische  Staatsverwaltung,  vol.  i,  p.  190.  C.  Th.,  xiii, 
h  33- 


183]       THE  CHURCH  AND  SOCIAL  ORGANIZATION  73 

emperors,  in  which  he  was  exempt  from  municipal  burdens, 
from  torture  and  from  service  on  the  pubHc  works,  but  he 
was  still  subject  to  the  land-tax,  gifts  on  certain  anniver- 
saries, and,  if  appointed  to  offices,  to  expenses  for  public 
games. 

In  this  society  where  the  individual  was  oppressed  with 
ever-increasing  obligations  to  the  state,  there  were  privi- 
leged classes.  Teachers,  rhetoricians,  priests  and  physi- 
cians were  granted  immunity  from  personal  burdens 
(munera)  by  various  emperors  because  their  services  were 
regarded  as  contributions  to  the  public  welfare.^  To  these 
privileged  classes  Constantine  added  the  Christian  clergy. 
In  a  letter  to  Anulinus,  Proconsul  of  Africa,  he  directed  that 
those  who  give  their  services  to  the  worship  of  the  divine 
religion,  and  who  are  commonly  called  clergymen,  be  en- 
tirely exempt  from  all  public  duties  (omnibus  omnino  publicis 
fimctionihus)  in  order  that  they  may  not  by  any  error  or 
sacrilegious  negligence  be  drawn  away  from  the  service  of 
the  Deity,  but  may  devote  themselves  without  any  hindrance 
to  their  own  law.^  These  privileges  were  extended  to  the 
entire  clergy  in  319,  but  heretics  were  excluded  from  enjoy- 
ing them  in  326.  In  330  readers  and  subdeacons  who  had 
suffered  at  the  hands  of  the  heretics  were  included  in  the 
exempted  class.  ^ 

1  Kuhn,  Die  stddtischc  und  hiirgcrUchc  Vcrfassung  des  rom.  Reiches, 
pp.  183,  106. 

2  Euseb.,  H.  E.,  x,  7. 

8  C.  Th.,  xvi,  2,  2.  Qui  divino  cultui  ministeria  religionis  impendunt, 
id  est  hi,  qui  clerici  appelantur,  ab  omnibus  omnino  muneribus  excu- 
sentur,  ne  sacrilegio  livore  quorundam  a  divinis  obsequiis  avocentur 
(319).  Ibid.,  5,  I.  Privilegia,  quae  contemplatione  religionis  indulta 
sunt,  catholicae  tantum  legis  observatoribus  prodesse  oportet.  Haere- 
ticos  autem  atque  schismaticos  non  solum  ab  his  privilegiis  alienos  esse 
volumus  sed  etiam  diversis  muneribus  constringi  et  subiici  (326). 
Ibid.,  7. 


74  EDICTS  OF  THE  THEODOSIAN  CODE  [184 

This  immunity  from  the  economic  obhgations  of  citizen- 
ship was  extended  to  the  property  of  clerks  by  Constantius, 
who  excused  it  from  Habihty  to  new  collations,  extraordin- 
ary superindictions,  the  imposts  on  trade  and  industry,  con- 
tributions for  the  support  of  the  army,  public  works,  and 
all  the  responsibilities  of  curial  property.^  Indeed,  not 
only  clerks,  but  their  wives  and  children  were  likewise  re- 
lieved from  curial  obligations,  showing-  that  the  tendency 
in  the  new  fortunes  of  the  church  was  to  make  the  privileges 
of  the  clergy,  like  those  of  other  professions,  hereditary.^ 

The  Arian  party,  always  in  a  minority  in  the  west,  na- 
turally had  no  sympathy  for  the  immunities  from  which  its 
opponents  derived  all  the  benefit.  This  perhaps  explains 
Constantius's  revival  of  Coiistantine's  legislation  in  354,  pro- 
viding that  only  those  clerks  who  had  no  possessions  should 
be  exempt  from  curial  obligations.'*  A  little  later  the  ac- 
ceptance of  an  Arian  creed  was  forced  on  the  synod  of 
Milan,  while  the  Arians  of  Rome  expelled  Pope  Liberius 
from  the  city  and  elected  an  anti-pope.  But  the  people 
were  not  in  sympathy  with  the  movement  and  in  357  Liber- 
ius was  recalled.  The  abrogated  ecclesiastical  privileges 
were  then  restored  to  the  church  of  Rome  and  three  years 
later,  in  reply  to  a  petition  of  the  council  of  Ariminum,  they 
were  renewed  in  the  interest  of  the  entire  church.*  The 
legislation  authorizing  them,  like  the  other  ecclesiastical 
laws  of  Constantine  and  Constantius,  was  rescinded  by 
Julian,  but  it  was  revived  by  Valentinian,  and  its  exemp- 
tions were  extended  to  the  lower  orders  by  Gratian.^ 

1  C.  Th.,  xvi,  8,  9,  10.  There  is  no  mention  of  the  exemption  from  the 
capitation  tax  levied  on  property  as  well  as  persons. 

-  C.  Th.,  xvi,  2,  9.  "  Filios  tamen  eorum,  si  curiis  obnixii  non  tenen- 
tur,  in  ecclesia  perseverare.  Cf.  10.  Quod  et  conjugibus  et  liberis  eorum 
et  ministeriis,  maribus  pariter  ac  feminis,  indulgemus,  quos  a  censibus 
etiam  iubemus  perseverare  immunes." 

3  C.  Th.,  xvi,  2,  II.  *'Ibid.,  2,  13,  14,  15.  ^  Ibid.,  15,  18,  24. 


185]       THE  CHURCH  AND  SOCIAL  ORGANIZATION  75 

As  soon  as  tliese  privileges  were  granted,  two  problems 
arose  which  necessitated  restrictive  measures.  First,  the  ex- 
pansion of  church  membership  increased  the  number  of  the 
clergy,  over  whose  choice  the  emperor  exercised  no  control. 
Accordingly  the  state  was  deprived  of  the  services  of  a 
large  and  increasing  class  of  citizens  whose  immunities 
tended  to  become  hereditary.  On  the  other  hand,  many 
curialcs  sought  refuge  from  their  economic  burdens  by  en- 
tering the  ecclesiastical  orders. 

Therefore,  Constantine,  in  320,  forbade  curiales  or  those 
able  to  perform  the  duties  of  curiales  to  enter  the  service 
of  the  church,  the  context  of  the  edict  implying  that  there 
had  been  similar  legislation  previously;^  and  another  law 
of  the  same  character  was  enacted  six  years  later."  In  ex- 
planation of  these  restrictions  of  clerical  privileges  Con- 
stantine stated  the  relation  which  the  church  should  sustain 
to  secular  society  in  tlie  following  sentences :  "  Those 
should  be  chosen  to  the  places  of  deceased  clerks  who  are 
poor  in  fortune  and  may  not  be  held  subject  to  civil  obli- 
gations." "  The  rich  ought  to  bear  the  burdens  of  the 
world,  the  poor  ought  to  be  supported  by  the  riches  of 
the  church." 

These  restrictions  were  not  observed  nor  was  Constan- 
tine's  idea  of  the  social  service  of  the  church  realized.  The 
church  was  more  than  a  benevolent  institution,  and  its  offices 
were  something  more  than  a  livelihood  for  those  poor  in 
worldly  goods.  Curialcs  continued  to  find  their  way  into 
clerical  orders,  and  so  escaped  their  economic  responsibili- 
ties.    Constantius  therefore  subjected  clerical  property  to 

1  C.  Til.,  xvi,  2,  3.  Note  the  opening  words :  "'  Cum  constitute  emissa 
praecipiat." 

2  C.  Th.,  xvi,  2,  6. 


76  EDICTS  OF  THE  THEODOSIAN  CODE  [i86 

the  regular  taxes,  restored  the  property  of  curiales  who  had 
become  clerks  to  curial  obligations  and  required  the  owners 
tered  ecclesiastical  service  with  the  consent  of  their  fellow 
curiales.'^  Valentinian  I  also  required  curiales  who  had 
taken  orders  during  his  reign  to  resume  their  public  obliga- 
tions and  forbade  "  rich  plebeians  to  be  received  by  the 
church."  ^  Violations  of  the  expressed  policy  of  the  state 
continued,  but  through  the  influence  of  Ambrose  Theo- 
dosius  pardoned  those  guilty  prior  to  388,  while  the  property 
of  later  offenders  was  confiscated  to  the  fiscus.^  In  399 
Arcadius  required  all  curiales  who  had  risen  to  the  rank  of 
bishop,  presbyter,  or  deacon  since  388  to  furnish  a  substitute 
to  their  curia  or  to  relinquish  their  property;  and  those  in 
the  minor  orders  were  to  be  immediately  subject  to  their 
obligation  to  the  state.^  A  similar  edict  was  issued  by 
Theodosius  the  Younger,  while  Valentinian  III  forbade 
curiales  to  take  orders  on  any  conditions,  and  also  estab- 
lished the  rule  that  no  one  whose  property  exceeded  300 
solidi  should  enter  ecclesiastical  service.  The  archdeacon 
was  charged  by  Majorian  to  correct  all  violations  of  this 
law.^ 

The  relation  of  the  clergy  to  the  mercantile  profession 
was  also  a  subject  of  legislation.  Because  "  it  is  evident 
that  the  profits  they  make  in  their  shops  and  places  of 
business  will  be  given  to  the  poor,"  Constantius  exempted 

1  C.  Th.,  xvi,  2,  15;  viii,  4,  7;  xii,  i,  49. 

2  Ibid.,  xvi,  2,  17,  19,  21,  22.  3  Ibid.,  xii,  i,  121. 

*  C.  Th.,  xii,  I,  163.  Deposed  clerks  were  also  forced  to  assume 
curial  obligations,  but  they  were  not  permitted  to  serve  in  any  civil  or 
military  office,     xvi,  2,  39. 

^  Ibid.,  xii,  I,  172;  Nov.  Vol.,  iii,  3. 


187]       THE  CHURCH  AND  SOCIAL  ORGANIZATION  yy 

clerks  from  taxes  on  trade.^  But  his  idea  of  the  altruistic 
character  of  the  clergy  changed  in  his  later  years,  and  he 
limited  the  exemption  to  occupations  whose  only  object  was 
to  supply  the  necessities  of  life.-  In  the  readjustment  of 
ecclesiastical  affairs  after  the  death  of  Julian,  this  exemp- 
tion was  not  revived  by  Valens  in  the  east,  but  Gratian 
granted  it  in  the  west  in  case  of  transactions  not  exceeding 
10  solidi.^  Under  Honorius  the  privilege  was  revived,  but 
finally  Valentinian  III  revoked  all  immunity  from  taxation 
in  the  case  of  clerks  engaging  in  trade.* 

In  conferring  on  the  clergy  immunity  from  civic  obliga- 
tions Constantine  and  Constantius  evidently  produced  con- 
ditions which  legislation  could  not  control.  But  this  was 
not  the  result  of  any  direct  opposition  by  the  church  to  the 
policy  of  the  state.  Indeed,  the  relation  of  the  clergy  to  the 
social  orders  presented  an  ecclesiastical  as  well  as  a  political 
problem.  The  immunities  of  the  profession  led  many  to 
enter  its  service  for  worldly  and  unconsecrated  purposes. 
Consequently  Pope  Leo  I  saw  in  Valentinian  Ill's  prohibi- 
tion of  ciu'ialcs  entering  the  priesthood  a  protection  to  the 
church.  He  consequently  advised  that  curialcs  who  had 
taken  orders  to  avoid  their  civil  obligations  should  be  de- 
posed, and  that  those  engaging  in  military  service  after  bap- 

1  Ibid.,  xvi,  2,  14.  "  Et  cum  negotiatores  ad  aliquem  praestationem 
competentem  vacantur,  ab  his  universis  istius  modi  strepitus  conqui- 
escat;  si  quid  enim  vel  parcimonia  vel  provisione  vel  mercatura,  hones- 
tati  tamen  conscia,  congesserint,  in  usum  pauperum  atque  egentium  min- 
istrari  oportet,  aut  id,  quod  ex  corundum  ergasteriis  vel  tabernis  con- 
quiri  potuerit  et  colligi,  collectum  id  religionis  aestiment  lucrum." 

-  C.  Th.,  xvi,  2,  15. 

^  Ibid.,  xiii,  i,  5,  6,  11.  Valens  had  a  similar  conception  of  the  ser- 
vice of  the  church  to  that  of  Constantine  and  Constantius.  "Christianos 
quibus  si  varus  est  cultus  adiuvare  pauperes  et  positos  in  necessitatibus 
volunt."     (5) 

■*  Ibid.,  xvi,  2,  36 ;  Nov.  Vol.,  xxxiv,  4. 


78  EDICTS  OF  THE  THEODOSIAN  CODE  [i88 

tism  should  not  be  admitted  to  orders.'  The  fourth  council 
of  Toledo  excluded  from  the  episcopacy  those  "  bound  to 
the  obligations  of  a  curia,"  who  have  not  risen  from  the 
lower  orders  or  are  under  thirty  years  of  age.  These  rules 
of  the  fifth  century  were  in  the  twelfth  century  incorporated 
in  the  Decretiim  by  Gratian  as  precedents  for  later  ages. 

The  attitude  of  the  church  toward  clerical  industries  also 
coincided  with  that  of  the  state.  In  the  first  and  second 
centuries,  while  the  church  was  an  obscure  and  unpopular 
institution,  its  officials  depended  on  their  individual  labor 
or  some  secular  profession  for  a  livelihood,  but  with  the 
increase  of  membership  and  wealth  in  the  third  century,  a 
feeling  arose  against  the  combination  of  spiritual  and 
worldly  professions.  It  was  not  prompted  by  a  belief  in 
the  unworthiness  of  secular  pursuits,  but  by  a  conviction 
that  the  spiritual  duties  of  the  priesthood  were  sufficient  to 
demand  all  the  time  of  the  clergy.^  In  the  fourth  century 
the  synod  of  Elvira  forbade  bishops,  priests  and  deacons  to 
leave  their  province  for  purposes  of  trade;  a  Donatist  coun- 
cil at  Carthage  forbade  clerks  to  engage  in  any  secular  oc- 
cupation, while  Jerome  and  Augustine  complained  that  the 
spiritual  duties  of  the  clergy  suffered  on  account  of  secu- 
lar pursuits.^       The   exemption   of   clerks   from   taxes   on 

1  Decretum,  pars  i,  dist.  51 ;  cf.  Ivo  Chart,  Decret.,  iv,  349.  A  similar 
comparison  might  be  made  of  the  attitude  of  church  and  state  toward 
the  entrance  of  slaves  into  clerical  service.  The  apostolical  canons  re- 
quire that  no  one  not  his  own  master  should  become  a  clerk  (c.  82). 
Leo  I  forbade  the  ordination  of  slaves  without  their  masters'  consent 
(£).  dist.,  54,  c.  i).  Valentinian  III  forbade  the  ordination  of  tenants, 
slaves  and  coloni.  But  if  a  member  of  these  classes  should  become  a 
clerk  and  remain  in  orders  thirty  years  or  rise  to  the  episcopacy,  his 
master  could  not  seize  him,  but  he  might  claim  his  pcculium.  Nov. 
Val.,  iii;  xxiv,  3.     Cf.  D.  dist.,  54,  cc.  6-9. 

2  The  sources  of  this  sentiment  were  Cyprian  and  Tertullian. 

3  Elvira  (306),  c.  19;  Carthage  (348);  Jerome,  Ep.,  52,  c.  5;  Aug., 
Sermo,  85. 


189]       THE  CHURCH  AND  SOCIAL  ORGANIZATION  79 

trade  was  therefore  made  in  consideration  of  the  custom 
and  conditions  of  the  early  centuries  of  the  church,  and  its 
removal  was  in  accord  with  the  better  sentiment  of  the  age. 

While  the  exemption  of  clerks  from  personal  burdens  and 
liability  to  certain  forms  of  taxation  and  the  withdrawal  of 
similar  privileges  from  the  pagan  priesthood  by  Gratian 
made  the  clergy  a  privileged  class  in  a  society  notable  for  the 
number  and  variety  of  its  economic  obligations,  the  institu- 
tion they  served  received  a  similarly  distinctive  character  by 
the  recognition  of  its  right  as  a  corporation  to  receive  dona- 
tions and  testamentary  bequests. 

The  recognition  of  the  corporate  rights  of  the  church 
antedates  the  reign  of  Constantine,  a  fact  often  neglected 
in  forming  an  opinion  of  the  material  fortunes  of  the 
church  in  the  age  of  its  persecution.  The  Htigation  of  the 
Christians  of  Rome  wath  the  corporation  of  inn-keepers,  the 
decision  in  their  favor  by  Aurelian,  and  his  award  of  prop- 
erty claimed  by  Paul  of  Samosata  "  to  those  who  are  in 
communion  w'ith  the  bishops  of  Italy  and  the  Bishop  of 
Rome,"  as  well  as  Valerian's  confiscation  of  ecclesiastical 
property  and  its  restoration  by  Galerius,  clearly  show  that 
the  property  rights  of  individual  churches  were  recognized 
in  the  third  century.^  After  the  persecution  of  Diocletian 
Maxentius  authorized  Pope  Miltiades  to  reclaim  the  prop- 
erty of  the  church  confiscated  since  304  and  Licinius  granted 
the  same  privilege  "  to  the  corporation  of  Christians  "  in 
the  east.  These  facts  are  evidences  of  the  legal  recogni- 
tion of  corporate  privileges  in  the  fourth  century  previous 
to  the  legislation  in  the  Theodosian  code." 

The  character  of  these  corporate  rights  is  not  definitely 

1  Lampridius,  Alex.  Sev.,  49;  Euseb.,  H.  E.,  vii,  30,  19.     Ibid.,  vii,  13. 

2  August,  Brev.  Coll.  cum  Donat.,  iii,  34;  Lactantius,  De  Moriibus 
Pcrsecutorum,  48. 


8o  EDICTS  OF  THE  THEODOSIAN  CODE  [190 

known,  but  some  appreciation  of  them  may  be  formed  by- 
considering-  the  nature  of  Roman  corporations  and  making 
a  comparison  with  ecclesiastical  conditions. 

The  right  of  organizing  societies  and  corporations  was  un- 
restricted under  the  Republic.  On  account  of  the  activity  of 
political  clubs  in  the  civil  wars,  Augustus,  by  the  Lex  Julia, 
dissolved  all  collegia  except  the  ancient  industrial  guilds 
which  tradition  associated  with  Numa  Pompilius,  and  pro- 
hibited new  corporations  to  be  formed  without  the  consent 
of  the  emperor.  These  privileged  collegia  were  of  two 
classes,  collegia  tenuiorum,  societies  formed  for  purposes 
of  charity  and  mutual  aid,  principally  by  the  workingmen, 
and  collegia  sodalitatum,  which  combined  with  benevolent 
aims  social  pleasures.  The  enforcement  of  the  Lex  Julia 
varied  according  to  the  policy  of  each  emperor.  Thus 
Trajan  was  active  in  the  suppression  of  illegal  corporations, 
Hadrian  made  an  exception  in  favor  of  charitable  societies 
at  Rome,  and  Septimius  Severus  extended  this  privilege  to 
the  provinces.  Marcus  Aurelius  granted  licensed  collegia 
the  rights  of  juristic  persons  and  Alexander  Severus  gave 
them  the  right  of  representation  by  a  defensor.  They  were 
thus  brought  under  the  control  of  the  Roman  administrative 
system  and  the  greater  toleration  so  gained  is  indicated  by 
the  fact  that,  with  the  reign  of  Alexander  the  words  coire 
licet  are  no  longer  found  in  the  inscription  of  the  Collegia. 

Since  there  is  no  account  of  the  confiscation  of  ecclesias- 
tical property  previous  to  the  persecution  of  257,  it  is  prob- 
able that  the  churches  preserved  their  corporate  possessions 
and  legal  interests  as  collegia,  either  as  collegia  temiiorum 
or  as  simple  religious  societies,  which  societies  were  gen- 
erally tolerated.^     The  inscription  that  records  the  gift  of 

1  Cf.  Liebenam,  Zur  Geschichte  und  Organisation  des  rom.  Vereins- 
wesen. 

2  Dig.,  xlvii,  22,  I. 


191  ]       THE  CHURCH  AND  SOCIAL  ORGANIZATION  8l 

a  cemeter}'  to  the  church  of  Caesarea  is  similar  to  the  form 
by  which  burial  land  or  places  of  assembly  were  given  to 
collegia;  and  there  are  reasons  to  believe  that  Christian  con- 
gregations were  publicly  and  legally  known  under  such 
vague  terms  as  cultores  verhi,  or  ecclcsia  fratrum,  quite  in 
keeping  with  the  names  of  many  collegia  tenuiorum}  Ter- 
tullian  wrote  his  apology  during  the  reign  of  Septimius  who 
was  friendly  to  the  collegia  and  this  explains  the  language 
with  which  he  describes  the  Christian  communities  and 
pleads  for  their  toleration.  The  Christians  make  contribu- 
tions (stipem)  to  their  treasury  (arcein)  each  month  {men- 
strua die),  and  they  should  receive  a  "place  among  the 
legally  tolerated  societies  "  for,  when  "  the  virtuous  meet 
together,  when  the  pious,  the  pure-minded  assemble  in  con- 
gregation, they  should  be  called  not  a  faction  but  a  curia."  ^ 
Some  years  after  Tertullian  wrote,  the  jurist  Ulpian  made 
membership  in  an  illicit  collegium  equivalent  to  crimen 
majesfatis;  and  a  similar  popular  conception  of  Christianity 
may  explain  the  charge  of  sacrilege  and  treason  from  which 
Tertullian  defended  the  Christians.''  Moreover,  that  the 
names  of  the  bishops  of  Rome  were  inscribed  on  the  regis- 
ters of  the  city  prefect,  and  that  the  names  of  provincial 
bishops  were  also  probably  preserved  on  the  registers  of 

''^  Corpus  Inscriptionum  Latinartim,  viii,  9585;  De  Rossi,  Roma  Sot- 
teranea,  vol.  i,  p.  107.  Pagan  collegia  were  known  as  cultores  Jovis, 
Herculis,  etc. 

2  The  words  stipem,  arcem,  menstrua,  are  also  found  in  the  inscrip- 
tions of  the  collegia.  Orelli-Henzen,  Collectio  Inscriptionum  Latin- 
arum,  6086.  Curia  in  the  African  dialect  corresponds  to  collegium  in 
that  of  Rome. 

^  Dig.,  xlvii,  22,  2.  Cf.  xlviii,  4,  i.  The  charge  of  sacrilege  was  a 
popular  one.  Legally  it  was  injury  to  sacral  property,  but  the  Chris- 
tians were  never  found  guilty  of  such  an  offense.  This  popular  con- 
ception of  sacrilege  found  its  way  into  the  code  as  injury  to  property 
of  the  Christian  church.     C.  Th.,  xvi,  2,  25,  31. 


82  EDICTS  OF  THE  THEODOSIAN  CODE  [1^2 

provincial  governors,  as  well  as  the  fact  that  the  property- 
rights  of  the  church  w^ere  recognized  by  various  emperors, 
are  best  explained  by  the  existence  of  Christian  churches 
as  licensed  corporations.^  This  does  not  signify  a  legal  re- 
cognition of  Christianity,  for  the  name  Christian  would  not 
be  taken  by  the  collegia,  nor  does  it  mean  that  the  character 
of  Christian  institutions  was  in  any  way  modified  by  pagan 
foundations;  but  under  some  such  fictitious  title  as  those 
mentioned  above,  the  churches  might  secure  the  right  of 
assemblage  and  of  holding  property  and  thus  ecclesiastical 
organization  might  survive  the  severe  persecution  of  the 
second  and  third  centuries.^ 

Under  Constantine  the  privileges  enjoyed  by  the  churches 
as  private  collegia  or,  temporarily,  as  public  foundations 
under  Diocletian  and  Licinius  were  succeeded  by  similar 
privileges  as  legalized  religious  corporations.  To  Roman 
citizens  the  right  was  given  to  leave  at  death  to  "  any  of 
the  most  sacred  and  venerable  Catholic  churches  "  what- 
ever they  desired.^  By  this  edict  the  church  received  a  far 
more  extensive  privilege  than  any  of  the  religious  founda- 

1  Vigneaux,  Essai  sur  I'histoire  de  la  prefecture  urbis,  p.  140.  De 
Rossi,  Roma  Sotteranea,  vol.  ii,  pp.  vi,  ix. 

2  De  Rossi  holds  that  the  churches  adopted  the  organization  of  the 
collegia  tenuiorum  exclusively.  He  has  been  criticised  by  Duchesne, 
Les  Origines  chretiennes.  Waltzung  holds  that  the  churches  were  re- 
ligious corporations  which  were  not  licensed  but  were  allowed  to  exist. 
{Les  Corporations  de  I'ancienne  Rome  et  la  charita.)  Cf.  the  work  of 
Liebenam  already  mentioned. 

3  C.  Th.,  xvi,  2,  4.  Habeat  unusquisque  licentiam,  sanctissimo  cath- 
olicae  venerabilique  concilio  decadens  bonorum  quod  optavit,  relinquere. 
Non  sint  causa  indicia,  etc.  Concilio  refers  to  an  individual  place,  not 
an  institution.  Thus,  Symmachus  speaks  of  the  concilium  patrum  for 
the  senate  and  Tertullian  uses  the  word  for  a  temple.  That  Constan- 
tine 'did  not  recognize  one  universal  church  is  evident  from  the  inter- 
changeable uses  of  the  words  ecclesia  and  ecclesiae.  Cf.  xvi,  2,  34,  38. 
His  desire  to  exclude  the  heretical  churches  from  the  privilege  of  the 
law  is  probably  responsible  for  its  wording. 


193]       ^-^^  CHURCH  AND  SOCIAL  ORGANIZATION  83 

tions  of  paganism.  These  could  only  receive  gifts  or  alien- 
ate property  by  consent  of  the  people  and  with  special  cere- 
monies ;  and,  with  a  few  exceptions,  never  acquired  the  right 
to  accept  testamentary  benefactions.  As  a  justification  of 
this  extraordinary  privilege  it  was  stated  that  "  nothing 
should  be  dearer  to  men  than  that  the  writing  of  their 
last  wish,  after  which  they  will  not  be  able  to  write  again, 
should  be  unrestricted  and  their  will,  which  may  not  return 
again,  should  have  free  play."  ^ 

This  privilege,  like  the  immunities  of  the  clergy,  was  sub- 
ject to  abuse  and  corruption.  The  age  was  one  of  religious 
enthusiasm  and  generosity,  which  were  encouraged  by  the 
teaching  of  the  churchmen.  Augustine  urged  Christians  to 
remember  Christ  as  well  as  their  sons  in  their  last  bequests. 
Parents  often  gave  all  their  property  to  the  church,  leav- 
ing their  children  in  want  and  hunger,  and  Jerome  presents 
a  sad  picture  of  the  clergy  of  Rome  visiting  the  houses  of 
rich  matrons  to  solicit  gifts."  Valentinian,  therefore,  or- 
dered the  confiscation  of  gifts  and  legacies  of  widows  and 
minors  that  had  been  solicited  by  priests  and  monks. ^ 
Twenty  years  later  Theodosius  forbade  the  appropriation  of 
the  property  of  a  widow  or  deaconess  to  religious  purposes 
or  the  execution  of  their  legacies  to  that  effect,  reserving 

1  The  church  was  also  given  the  right  of  being  represented  in  the 
courts  by  an  advocate,  or  civil  representative,  instead  of  an  ecclesiastic, 
for  which  privilege  the  similar  right  of  pagan  foundations  was  the 
precedent.  Cf.  C.  Th.,  xvi,  2,  38  (of  Honorius),  and  Godefroy's  com- 
ment. 

2  Aug.,  Sermo,  355,  c.  4;  Ep.,  262;  Jerome,  Ep.,  52.  The  law  of  the 
Falcidian  Fourth  protected  the  legal  heirs  from  complete  disinheritance. 
But  the  Sentences  of  Paul  allow  this  rule  to  be  applied  only  after  gifts 
to  the  gods  have  been  deducted.  It  is  probable  that  a  similar  custom 
was  observed  in  the  case  of  testaments  of  the  church.  Cf.  Lex  Roniana 
Visigothorutn  (ch.  vi  of  this  monograph). 

3  C.  Th.,  xvi,  2,  20. 


84  EDICTS  OP  THE  THEODOSIAN  CODE  [194 

their  property  to  the  heirs,  relatives  and  creditors.^  But 
ecclesiastical  influences  were  strong  enough  to  secure  the 
repeal  of  the  law  two  months  after  its  enactment  and 
Theodosius  the  Younger  allowed  the  church  to  inherit  the 
property  of  clerks  who  died  without  testament  or  heirs. ^ 
Finally,  Martian  permitted  widows,  deaconesses  and  nuns 
to  leave  by  testament,  Mei  commissa,  or  codicil,  whatever 
they  pleased  to  churches,  bishops,  clerks  or  deaconesses.^ 

The  recognition  of  the  corporate  rights  of  the  church 
suggests  the  problem  of  the  taxation  of  its  property.  While 
no  legislation  by  Constantine  on  this  subject  remains,  his 
association  of  the  churches  with  the  imperial  patrimony  sug- 
gests that  church  property  in  some  instances  enjoyed  similar 
privileges.*  The  synod  of  Rimini  petitioned  Constantine 
for  the  exemption  of  church  property  from  taxation  but  the 
request  was  not  granted.'^  Still,  church  property  enjoyed 
some  economic  privilege,  doubtless  through  its  association 
with  clerical  property,  for  Gratian  declared  it  to  be  subject 
to  extraordinary  taxes  but  exempt  "  by  ancient  custom  " 
from  obligations  to  furnish  food  and  means  of  transporta- 

1  C.  Th.,  2,  27.  This  edict  also  fixes  the  age  of  deaconesses  at  sixty 
years  and  prohibits  women  to  tonsure  their  heads. 

^  Ibid.,  xvi,  2,  28;  V,  3,  I. 

3  Nov.  Mart.,  v. 

*  C.  Th.,  I,  I.  This  edict  states  that,  with  the  exception  of  private 
properties,  the  Catholic  churches  and  the  families  of  the  ex-consul  and 
Master  of  Horse  Eusebius  and  Assacus,  king  of  Armenia,  no  one  shall 
be  aided  by  emoluments  of  houses  and  sustenance.  Interpretations  of 
the  edict  differ.  Godefroy  saw  in  it  exemption  of  church  property 
from  taxation.  But  as  neither  Eusebius  nor  any  of  the  ecclesiastical 
historians  mentions  such  a  privilege,  this  cannot  be  its  meaning.  Lon- 
ing  suggests  that  it  probably  refers  to  gifts  of  grain  and  provisions. 
Cf.  Theodoret,  H.  E.,  i,  10;  Euseb.,  x,  6.  Taxes  on  church  property 
might  have  been  occasionally  remitted  in  case  of  need,  but  there  is  no 
legal  exemption  by  Constantine. 

s  C.  Th.,  xvi,  2,  15. 


195]       THE  CHURCH  AND  SOCIAL  ORGANIZATION  85 

tion  for  the  palace  and  army,  grain  for  distribution  in  the 
cities,  service  on  pubHc  buildings,  wood  and  fuel  for  the  im- 
perial factories  and  other  miincra.^  Honorius  extended 
the  exemption  to  service  on  roads,  the  repair  of  bridges, 
and  extraordinary  superindictions.^  This  exemption  of  a 
vast  and  increasing  property  from  so  many  obligations  re- 
sulted in  a  serious  decline  of  public  revenues;  hence  Theo- 
dosius  the  Younger  imposed  on  the  church  the  care  of 
bridges,  roads  and  streets,  while  Valentinian  III  removed 
all  exemptions  from  public  burdens.^ 

When  the  privileges  conferred  on  the  church  and  clergy 
are  considered  in  relation  to  the  social  problems  of  the  age, 
they  leave  the  impression  that  they  increased  the  disintegrat- 
ing forces  in  Roman  society.  The  one  hundred  and  ninety 
edicts  of  the  code  which  treat  of  the  curiales  give  a  vivid 
picture  of  the  decline  of  the  middle  class.  On  the  other 
hand,  the  senatorial  order  was  increasing  in  wealth,  and 
the  cumbersome  administrative  machinery  was  too  corrupt 
for  any  legislation  to  purify.  Salvian,  the  garrulous  priest 
of  Marseilles,  the  only  writer  of  the  fifth  century  inter- 
ested in  the  economic  and  social  problems  of  his  time,  de- 
scribes the  feeling  aroused  by  legislation.  According  to 
him  the  poor  pay  tribute  to  the  rich,  the  weak  bear  the  bur- 
den of  the  strong.  Two  or  three  determine  what  may 
bring  injury  to  all,  a  few  mighty  ones  make  decisions  which 
bring  misery  to  the  multitude.  The  people,  united  by  tra- 
dition and  the  associations  of  a  common  fatherland,  are 
alienated  in  sympathies.  One  can  not  be  happy  without 
bringing  unhappiness  to  his  neighbor,  the  individual's  in- 
terests absorb  all  consideration  for  his  fellowman.  Yet  his 
solution  for  the  evils  he  saw  was  not  a  renewed  patriotism, 

1  C.  Th.,  xi,  16,  15.  '  Ibid.,  xvi,  2,  40. 

8  Ibid.,  XV,  3,  3 ;  Nov.  Val,  x. 


86  EDICTS  OF  THE  THEODOSIAN  CODE  [ig6 

but  a  greater  love  and  generosity  for  the  institution  he 
served.^  The  church,  therefore,  by  laying  stress  on  the  dis- 
tinction between  clergy  and  laity,  by  securing  privileges 
which  exempted  its  officials  and  property  from  the  common 
fortune  of  the  people  it  professed  to  serve,  must  have  in- 
creased the  confusion  of  interests  which  already  existed. 
This  conjecture  is  confirmed  by  an  examination  of  the  par- 
ticipation of  the  episcopacy  in  the  administration  of  justice 
and  the  attitude  of  the  clergy  toward  the  jurisdiction  of  the 
civil  courts. 

1  Cf.  Salvianus,  De  Gubcrnatione  Dei,  Liber  iii,  for  his  criticisms  of 
social  conditions.  For  his  solution,  cf.  Adversum  Avaritiani.  There  he 
finds  the  root  of  all  evil  in  that  spirit  of  avarice  which  withholds  from 
God  and  the  church  the  wealth  that  should  be  devoted  to  religious  and 
charitable  purposes. 


CHAPTER  V 
The  Episcopal  Courts 

The  imperial  administration  rendered  a  distinct  and 
abiding  service  to  Roman  civilization  by  its  influence  on 
the  evolution  of  law.  It  unified  the  custom  of  city  and  pro- 
vince, eliminated  the  antithesis  between  the  rules  of  civil 
and  official  law,  and  infused  a  new  spirit  of  humanity  into 
the  legal  life  of  the  empire  by  subjecting  it  to  the  guidance 
of  one  supreme  authority. 

But  these  beneficent  results  of  the  centralization  of  justice 
were  not  attained  without  incurring  certain  evils  and  abuses. 
Chief  of  these  were  technicalities  of  procedure  and  delay  in 
justice  incidental  to  the  centralizing  process  and  the  for- 
mation of  a  system  of  appeals.  Salvian  regards  the  fail- 
ure to  obtain  justice  in  the  courts  as  one  of  the  causes 
leading  the  unfortunate  to  leave  their  country  and  to  seek 
homes  among  the  barbarians.^  Ammianus  Marcelinus  des- 
cribes the  lawyers  as  people 

who  promote  every  variety  of  strife  and  contention  in  thous- 
ands of  actions,  wear  the  door-posts  of  widows  and  the 
thresholds  of  orphans,  create  bitter  hatred  among  friends,  rela- 
tives  or  connections   who  have  a  disagreement,  mystify  the 

1  De  Guhernatione  Dei,  v,  5.  Priscus,  a  Greek  historian  of  the  fifth 
century,  found  a  Greek  captive  among  the  Scythians  "  who  considered 
his  new  life  .  .  .  better  than  his  old  life  among  the  Romans."  One 
reason  for  this  was  the  corrupt  condition  of  the  courts;  another  the 
inequality  in  taxation  among  the  Romans.  Cited  by  Bury,  Later  Roman 
Empire,  vol.  i,  p.  28. 

197]  87 


88  EDICTS  OF  THE  THEODOSIAN  CODE  [198 

truth,  prepare  seven  costly  methods  of  introducing  some  well 
known  law, 

and  conclude  their  argument  by  declaring  that  "  the  chief 
advocates  have  as  yet  had  only  three  years  since  the  com- 
mencement of  the  suit  to  prepare  themselves  to  conduct  it," 
and  so  obtain  an  adjournment/  Although  this  statement 
is  evidently  colored  by  the  soldier's  antipathy  for  civil 
life,  it  represents,  to  some  extent,  the  conditions  that  pre- 
vailed. Indeed,  the  court  system  and  the  question  of  ap- 
peals were  subjects  of  frequent  legislation  by  Constantine 
and,  in  order  that  "  unfortunate  men,  involved  in  the  evils  of 
long  and  almost  perpetual  actions  at  law  might  soon  escape 
from  evil  appeals  and  exacting  cupidity,"  he  sanctioned  and 
introduced  into  the  legal  system  of  the  empire  the  episcopal 
court,  an  institution  characteristic  of  the  life  of  the  early 
church.^ 

The  ideals  of  Christianity  demanded  that  all  problems 
of  human  life  should  be  decided  according  to  its  standards. 
To  this  end  the  teachings  of  Jesus  recommend  a  procedure 
in  disputes  among  his  followers  different  from  that  of  the 
law  courts,  and  St.  Paul  declared  that  the  saints  were  more 
worthy  to  act  as  judges  than  the  unjust.^  The  Didake  or 
Teaching  of  the  Twelve  Apostles,  which  represents  the 
Christian  life  of  the  second  century,  forbids  "  one  who  has 
a  dispute  with  his  fellow  "  to  commune  with  his  congrega- 
tion, nor  should  any  one  speak  to  him  until  his  repentance.* 
Tlie  result  was  the  development  of  a  jurisdiction  of  the  con- 
gregation over  other  than  the  moral  actions  of  its  members. 

1  Historia  Annorum,  xxx,  4. 

^  Constitutiones  Sirmondi,  i  (331).  Cf.  scq.,  p.  90,  foot-note.  For 
legislation  on  appeals,  C.  Th.,  ix,  i  and  xi,  30. 

3  Matt.,  18,  15-17;  I  Cor.,  6,  1-3.  ^Didake,  14,  2;  15,  3. 


igg]  THE  EPISCOPAL  COURTS  89 

The  so-called  apostolic  constitutions,  an  epitome  of  Christian 
tradition  and  practice  of  the  third  and  fourth  centuries,  re- 
veal a  well-developed  administration  of  justice.  Minor 
suits  and  difficulties  were  heard  by  the  deacons,  more  serious 
ones  by  the  bishop,  who,  each  Monday,  surrounded  by  dea- 
cons and  presbyters,  heard  pleas  and  rendered  decisions/ 
The  rules  which  guided  the  bishop  and  the  officers  assisting 
him  were  not  those  of  the  common  law,  but  were  suggested 
by  the  spiritual  conceptions  of  Christianity.  These  re- 
quired that  the  rulers  of  this  world  should  not  pass  sentence 
on  the  Christian;  if  possible  the  contending  parties  should 
be  reconciled  without  the  judgment  of  the  bishop;  but  his 
sentence,  once  rendered,  must  be  accepted  as  final,  on  pain 
of  excommunication,  for  whom  he  punishes  and  separates 
"  is  rejected  from  eternal  life  and  glory,  .  .  .  dishonorable 
among  holy  men,  and  one  condemned  by  God."  " 

The  freedom  from  the  limitations  of  the  common  law  and 
the  voluntary  character  of  the  litigations  in  the  episcopal 
courts  suggest  an  institution  of  Roman  public  life. 

In  early  Indo-European  law  there  was  a  custom  by  which 
two  parties  submitted  their  dispute  to  the  decision  of  a  third. 
This  was  accompanied  by  the  deposit  of  a  pledge  which  fell 
to  the  party  in  whose  favor  the  decision  was  made,  later  to 
the  arbitrator.  If  the  unsuccessful  litigant  were  dissatisfied, 
he  might  appeal  to  the  people;  but  contemporaneously  with 
the  rise  of  a  system  of  courts,  the  arbitrator  found  means 
to  have  his  sentence  enforced  by  the  state;  in  fact,  this  cus- 
tom was  one  of  the  essential  factors  in  the  transition  from 
justice  administered  by  self-help  to  orderly  adjudication  by 
the  state.  A  survival  of  it  is  found  in  the  Roman  institution 
of  rcccpti  arbitri,  by  which  the  litigants  voluntarily  make 
two  contracts,  one  between  themselves,  another  with  the 

1  Const.  A  post.,  u,  44-51.  -  Ibid.,  ii,  47. 


^O  EDICTS  OF  THE  THEODOSIAN  CODE  [200 

arbitrator.  This  settlement  of  cases  outside  the  courts,  ac- 
cording to  principles  independent  of  (though  not  in  conflict 
with)  the  formal  law  of  Rome,  was  recognized  in  the  ad- 
ministration of  justice  by  the  praetor.  If  one  party  failed 
to  observe  the  contract,  the  other  by  a  civil  action  {actio 
de  stipidatio)  invoked  praetorian  interference.  On  the  other 
hand  the  praetor,  as  guardian  of  the  law,  limited  the  cases 
which  might  be  submitted  to  this  extra-judicial  arbitration 
and  made  certain  rules  for  its  procedure.  While  the  epis- 
copal court  was  extrajudicial  in  character  and  was  not  re- 
cognized as  a  source  of  justice,  it  is  evident  that  if  the 
litigants  entered  into  a  contract  before  submitting  to  the 
bishop's  arbitration,  the  successful  party  in  the  suit  might 
call  upon  the  civil  authorities  to  enforce  the  decision.^ 

These  two  institutions,  the  recepti  arbitri  and  the  epis- 
copal court,  form  the  basis  of  two  edicts  by  which  Con- 
stantine  gave  the  episcopal  courts  a  place  in  the  judicial 
system  of  the  empire.-     While  ten  years  separate  them,  the 

1  The  institution  of  recepti  arbitri  has  been  well  treated  by  Matthias, 
Die  Entwickelung  des  romischen  Schiedsgcrichtes,  in  the  Festschrift  zum 
funfsigjdhrigen  Doctorjiihildum  von  Bernard  Windscheid.  Rostock, 
1888. 

2  These  are  the  seventeenth  and  the  first  of  the  Constitutions  of  Sir- 
mond,  a  collection  of  imperial  edicts  made  in  the  seventeenth  century  by 
Sirmond,  the  French  ecclesiastic  and  jurist.  The  source  in  which  he 
found  them  was  the  conciliar  records  of  the  sixth  century,  where  they 
were  cited  in  demand  for  favors  and  privileges  from  the  Germanic  kings. 
Some  of  them  are  found  in  the  Theodosian  code,  some  are  not.  Among 
the  latter,  by  far  the  most  important  are  those  under  discussion.  (The 
constitution  of  331,  however,  had  been  published  previously  by  Cujas 
in  his  edition  of  the  Theodosian  code.)  Godefroy,  the  editor  and  com- 
mentator of  the  Theodosian  code,  questioned  the  authenticity  of  these 
two  edicts  of  Constantine.  He  believed  them  to  be  ecclesiastical  forr 
geries;  but  Haenel  has  successfully  defended  them  in  his  edition. 
{Corpus  Juris  Ante-Justiniani,  vol.  iii,  p.  140.)  He  believes  the  con- 
stitutions were  originally  a  part  of  the  first  book  of  the  Theodosian 
code,  but  on   account  of  their  subject-matter  late  manuscripts  placed 


20l]  THE  EPISCOPAL  COURTS  9I 

later  edict  is  an  interpretation  of  earlier  legislation  which 
probably  included  an  edict  that  has  been  lost.'  They  should 
therefore  be  regarded  as  defining  an  existing  institution,  not 
as  successive  steps  in  its 'formation. 

By  this  legislation  the  episcopal  arbitration  was  trans- 
formed into  a  legal  mode  of  procedure.  "  Unfortunate 
men  involved  in  long  and  almost  perpetual  actions  at  law  " 
were  given  the  privilege  of  removing  their  litigation  at  any 
stage  of  a  civil  process  to  the  bishop,  even  against  the  will 
of  their  opponents.^  Since  the  execution  of  the  bishop's 
decision  was  through  the  regular  courts  and  his  opinion 
was  given  the  sanction  of  the  emperor  as  an  interpretation 
of  law,  the  place  given  him  in  the  system  of  justice  was 
similar  to  that  of  the  judges  of  the  public  law  courts.' 
Moreover,  the  conception  of  his  office  as  arbitrator  was  that 
of  an  authority  transcending  the  regular  civil  courts,  for  the 
justice  he  administered  arose  from  his  individual  conception 

them  as  an  appendix  to  the  sixteenth  book,  and  on  account  of  the 
transcription  they  were  for  a  time  lost.  According  to  the  edition  of  the 
Theodosian  code  by  Mommesen  and  his  students  they  form  a  collection 
older  than  the  Theodosian  code,  perhaps  were  one  of  the  sources  used 
by  its  compilers. 

1  Religionis  est,  clementiam  nostram  sciscitare  voluisse,  quid  de  sen- 
tentiis  episcoporum  vel  ante  moderatio  nostra  censuerit  vel  nunc  servari 
cupiamus.     Sirmondi,  i   {anno  331)- 

~  Quicunque  itaque  litem  habens,  sive  possessor  sive  petitor  erit,  inter 
initia  litis  vel  decursis  temporum  curriculis,  sive  cum  negotium  pero- 
ratur,  sive  cum  iam  coeperit  promi  sententia,  indicium  eligerit  sacro- 
sanctae  legis  antistitis,  illius  sine  aliqua  dubitatione,  etiamsi  alia  pars 
refragatur,  ad  episcopum  cum  sermone  litigantiam  dirigatur.  Cons. 
Sir.,  I. 

3  Itaque  quia  a  nobis  instrui  voluisti,  olim  prorogatae  legis  ordinem 
salubri  rursus  imperio  propagamus.  .  .  .  Sive  itaque  .  .  .  ab  episcopis 
fuerit  iudicatum,  apud  vos,  qui  iudiciorum  summam  tenetis,  et  apud 
ceteros  omnes  indices  ad  exsecutionem  volumus  pervenire.  (Sirm.,  i. 
Cf.  Soz.,  ii,  9.)  Testimonium  etiam,  ab  uno  licet  episcopo  perhibitum, 
omnes  iudices  indubitanter  accipiant,  nee  alius  audiatur,  cum  testimon- 
ium episcopi  a  qualibet  parte  fuerit  repromissum.     {Cons.  Sir.,  i.) 


92  EDICTS  OF  THE  THEODOSIAN  CODE  [202 

of  right  and  wrong;  and  as  not  even  minors  could  appeal 
from  his  decision,  he  enjoyed  a  wider  range  of  action  than 
the  civil  judge;  indeed,  in  this  respect  his  jurisdiction  was 
equal  to  that  of  the  pretorian  prefect/ 

This  recognition  of  the  episcopal  court  as  a  source  of 
secular  justice  is  unique  in  the  history  of  Roman  jurispru- 
dence. No  civil  court  was  ever  given  such  unlimited  au- 
thority. Since  the  first  legislation  upon  the  subject  is  lost, 
no  definite  and  satisfactory  interpretation  of  the  bishop's 
position  is  possible.  In  view  of  the  fact,  however,  that  tra- 
dition prevented  Christians  applying  to  secular  courts,  it  is 
not  improbable  that  the  bishops  regarded  the  privilege  given 
them  by  Constantine  as  a  step  toward  securing  exemption 
of  the  clergy  from  the  civil  courts. 

After  forcing  the  members  of  the  synod  of  Milan  in  354  to 
excommunicate  Athanasius  and  to  subscribe  to  the  Arian 
creed,  which  he  also  required  all  bishops  of  the  realm  to 
accept,  Constantius  guaranteed  an  end  of  persecution  by 
prohibiting  the  accusation  of  bishops  in  the  public  courts. 
But  the  purpose  of  his  edict  was  not  clearly  stated,  and  a 
literal  interpretation  conferred  exemption  on  bishops  from 
the  jurisdiction  of  the  criminal  courts.  In  it  we  find  the 
origin  and  precedent  for  that  examination  of  criminal 
charges  against  bishops  by  the  ecclesiastical  authorities  prior 
to  any  action  in  the  secular  court,  a  privilege  which  was 

1  "Illud  est  enim  veritatis  auctoritate  firmatum,  illud  incorruptum,  quod 
a  sacrosancto  homine  conscientia  mentis  illibatae  protulerit.  Otnnes  ita- 
que  causae,  quae  vel  praetorio  iure  vel  civili  tractantur,  perpetuo  stabili- 
tatis  iure  firmentur,  nee  liceat  ulterius  retractari  negotium,  quod  epis- 
coporum  sententia  deciderit."  (Cons.  Sir.,  i.)  Minors  were  denied  the 
right  of  appeal  from  the  episcopal  court  by  the  same  edict,  while  the 
arbitral  contract  of  a  minor  might  ordinarily  be  quashed  by  asking  for 
an  integrum  restitutio.  The  same  year  that  this  edict  was  issued  Con- 
stantine made  the  decision  of  the  pretorian  prefect  final.  C.  Th.,  xi, 
30,  16. 


203]  T^HE  EPISCOPAL  COURTS  93 

extended  to  the  entire  clergy  in  the  Prankish  monarchy  and 
was  always  one  of  the  most  difficult  problems  in  mediceval 
politics/ 

The  introduction  of  the  episcopal  court  with  final  juris- 
diction in  civil  cases,  the  decision  of  controversies  in  this 
court  according-  to  the  bishop's  conception  of  right  and 
wrong,  and  the  episcopal  exemption  from  the  regular  crim- 
inal procedure  naturally  caused  confusion  and  abuse  in  a 
system  of  jurisprudence  so  long  and  symmetrically  devel- 
oped as  the  Roman  law.  Episcopal  jurisdiction  was  there- 
fore limited  and  redefined  by  the  legislation  of  succeeding 
emperors. 

The  first  step  in  this  direction  was  taken  by  Gratian  in  an 
edict  which  recognized  the  right  of  the  church  courts  to 
hear  ecclesiastical  cases  but  required  criminal  cases  to  be 
decided  by  the  secular  courts."  This  legislation  was  in- 
effective and  was  repeated  twenty  years  later  by  Honorius, 
who  confirmed  the  jurisdiction  of  bishops  over  religious 
cases,  ordering  their  deposition  of  priests  to  be  enforced  by 
police  authorities  if  necessary,  and  required  all  other  cases 
to  be  heard  according  to  the  law.^  But  the  prerogative 
granted  by  Constantius  had  been  readily  assimilated  with 
ecclesiastical  tradition  and  custom.  All  efforts  to  revoke  it 
failed.     The  commentaries  on  the  execution  of  Priscilian  by 

1  C.  Til.,  xvi,  2,  12.  "  Mansuetudinis  nostrae  lege  prohibemus,  in 
iudiciis  episcopos  accusari,  ne,  dum  adfutura  ipsorum  beneficio  impun- 
itas  aestimatur,  libera  sit  ad  arguendos  eos  animis  furialibus  copia.  Si 
quid  est  igitur  querelarum,  quod  quispiam  defert,  apud  alios  potissimum 
episcopos  convenit  explorari,  ut  opportuna  atque  commoda  cunctorum 
quaestionibus  audientia  commodetur  "  (355).  For  the  interpretation  of 
this  edict  I  am  indebted  to  Godefroy,  the  seventeenth  century  editor 
and  commentator  of  the  Theodosian  code. 

2  C.  Th.,  xvi,  2,  23. 

^  Ibid.,  xvi,  II,  i;  ii,  35,  41;  Const.  Sir.,  7. 


94  EDICTS  OF  THE  THEODOSIAN  CODE  [204 

the  decision  of  a  secular  court,  the  condemnation  of  John 
Chrysostom  by  an  ecclesiastical  council,  the  opinion  of  Pope 
Gelasius  that,  according  to  Roman  law  bishops  must  be 
heard  and  condemned  by  an  episcopal  court  before  punish- 
ment by  the  civil  authorities,  and  the  reprimand  of  the 
exarch  of  Italy  by  Gregory  the  Great  for  imprisoning  Bishop 
Blancus — all  illustrate  the  impotence  of  imperial  legisla- 
tion when  opposed  to  ecclesiastical  privilege  and  custom/ 

The  revision  of  the  episcopal  court  as  a  source  of  justice 
was  begun  by  Arcadius  and  Honorius.  Two  edicts  which 
are  not  found  in  the  Theodosian  code,  limit  its  jurisdiction 
to  cases  in  which  both  parties  agree  to  submit  to  the  bishop's 
arbitration.^  Litigation  in  the  episcopal  court  was  thus 
reduced  to  the  same  basis  as  that  of  the  recepti  arhitri;  but 

1  Priscilian :  Sulpicius  Severus,  Chronicon,  ii,  49.  "  Priscillianus  vero, 
ne  ab  episcopis  audiretur,  ad  principem  provocavit,  permissumque  id 
nostrorum  inconstantia,  qui  aut  sententiam  vel  in  refragantem  ferre  de- 
buerant  aut,  si  ipsi  suspecti  habebantur,  aliis  episcopis  audientiam  reser- 
vare,  non  causam  imperatori  de  tarn  manifestis  criminibus  permittere." 
A  twin-judgment  of  heresy  and  malciicium  was  brought  against  Pris- 
cilian; and  Martin  of  Tours,  in  criticism  of  the  trial,  said:  "  Saevum 
etse  et  inauditum  nefas,  ut  causam  ecclesiae  iudex  saeculi  iudicaret." 
Ibid.,  ii,  50.  Chrysostom,  Mansi,  iii,  1151.  "  Quoniam  quorundam  crim- 
inum  accusatus  Johannes  noluit  adesse,  leges  talem  deponant.  quo  et 
ipse  subiit."  Gelasius  (Migne,  vol.  Ivi,  p.  641),  "nunquam  de  pontificibus 
nisi  ecclesiam  iudicasse;  non  esse  humanarum  legum  de  talibus  ferre 
sententiam  absque  ecclesiae  principaliter  constitutis  pontificibus,"  etc. 
Greg.  Great,  Ep.,  2Z. 

2  Cod.  Just.,  \,  A,  7;  ibid.,  8.  The  latter  is  also  the  eighteenth  of  the 
constitutions  of  Sirmond.  It  is  interesting  to  note  that  Augustus  had 
given  the  Jews  the  privilege  of  deciding  their  religious  cases  according 
to  their  own  law  and  custom,  and  this  was  confirmed  by  Theodosius 
the  Great.  As  the  Jewish  patriarchs  extended  the  exercise  of  this 
authority  to  secular  matters,  Arcadius  required  Jews  living  under  the 
protection  of  the  Roman  government  to  submit  their  litigation  to  the 
common  law  courts.  But  if  the  patriarchal  arbitration  was  agreed  upon, 
the  decision  was  final  even  if  not  in  accord  with  the  principles  of  Roman 
law.     C.  Th.,  ii,  i,  10. 


205]  '^^^E.  EPISCOPAL  COURTS  93 

the  court  did  not  lose  its  privileged  position  in  the  judicial 
system  of  the  empire.  The  bishop's  decision,  once  rendered, 
was  final,  and  was  enforced  through  the  public  courts,  in- 
deed the  pretorian  prefect  was  directed  to  prevent  any 
movement  to  quash  it.  Its  validity  therefore  rested  upon 
the  standing  of  the  bishop  as  a  judge,  not  on  an  agreement 
to  submit  to  the  episcopal  arbitration/  The  essential  ele- 
ment of  Constantine's  legislation,  the  introduction  into  the 
Roman  judicial  system  of  a  court  whose  law  and  proceed- 
ure  were  as  untrammeled  as  that  of  the  recepti  arbitri,  and 
whose  authority  was  as  binding  as  that  of  the  public  judges, 
remained  unaltered. 

This  restriction  imposed  by  Arcadius  and  Honorius  was 
openly  disregarded  by  the  church  in  so  far  as  it  applied  to 
cases  in  which  clerks  only  were  concerned;  indeed,  the 
councils  of  the  later  fourth  and  the  fifth  centuries  forbade 
the  clergy  to  carry  their  litigation  into  the  civil  courts. " 
Valentinian  III  was  therefore  constrained  to  declare  the 
jurisdiction  of  the  bishop  over  the  clergy  as  well  as  the 
laity  to  be  invalid  unless  both  parties  agreed  to  accept  his 
decision;  further,  that  clerks  could  not  force  laymen  to 
appear  in  the  episcopal  court ;  and  that  bishops  had  no  privi- 
leged position  before  the  law.^ 

1  Cod.  Just.,  i,  4,  8.  Imp  p.  Honorius  ct  Theodosius,  A.  A.  Theodora, 
P.  P.  "  Episcopale  iuclicium  ratum  sit  omnibus,  qui  se  audiri  a  sacer- 
dotibus  eligerint,  eamque  illorum  iudicationi  adhibendam  esse  rever- 
entiam  jubemus,  quam  vestris  deferre  necesse  est  potestatibus  a  quibus 
non  licet  provocare.  Per  judicum  quoque  officia  ne  sit  cassa  episcopalis 
cognitio,  definitione  executio  tribuatur." 

2  Carthage  (397),  c.  9;  Aries  (443  or  452),  c.  31;  Chalcedon  (451). 
c.  9- 

3  Nov.  Val.  Ill,  tit.  34.  There  are  two  other  laws  of  Valentinian  III 
which  were  quoted  in  the  Middle  Ages  as  granting  exemption  from  the 
secular  courts.  Cons.  Sinnon.,  iii  and  vi.  (Cf.  Florus  of  Lyons,  Capi- 
tula,  2.)     But  their  purpose  was  to  rescind  the  legislation  of  John  the 


C|6  EDICTS  OF  THE  THEODOSIAN  CODE  [206 

In  this  legislation  and  the  attitude  of  the  church  toward 
it  we  have  the  prelude  to  the  problem  of  ecclesiastical  courts 
in  the  Middle  Ages.  The  existence  and  legality  of  the 
episcopal  court  were  never  questioned,  but  the  nature  and 
extent  of  its  jurisdiction  were  serious  matters.  The  state 
insisted  that  all  criminal  cases  and  those  civil  cases  not  sub- 
mitted to  the  bishop  by  agreement  should  be  heard  by  the 
secular  courts;  but  the  church  councils  of  the  fifth  century 
continued  to  forbid  clerks  to  resort  to  secular  sources  of 
justice.^  Indeed,  this  prohibition  seems  to  have  been  rec- 
ognized by  the  civil  authorities,  for  a  gloss  of  the  Breviary 
of  Alaric,  a.  sixth  century  compilation  of  Roman  law,  states 
that  the  requirement  of  mutual  consent  in  cases  heard  by 
the  bishop  was  repealed  by  Majorian  so  far  as  cases  among 
clerks  were  concerned.^  The  privilege  of  applying  to  the 
episcopal  court  for  justice  became  one  of  the  traditions  of 
the  church.  Benedict  the  Levite  included  in  his  collection 
of  capitularies  the  constitution  of  331  as  a  Roman  law  re- 
Tyrant,  which  had  subjected  religious  as  well  as  civil  cases  of  the 
clergy  to  the  jurisdiction  of  the  secular  courts,  and  to  guarantee  the 
right  of  ecclesiastical  courts  to  hear  ecclesiastical  cases. 

1  Angers  (453),  can.  19;  Vannes  (465),  c.  9.  Only  with  the  permis- 
sion of  the  bishop  can  clerks  resort  to  the  secular  court.  Carthage 
(401),  c.  I,  forbids  a  clerical  witness  in  a  clerical  case  decided  by  an 
ecclesiastical  court  to  appear  again  as  witness  if  the  dissatisfied  clerk 
appeals  to  the  civil  courts. 

2  Lex  Romana  Visigothorum,  Nov.  Val.  Ill,  c.  12.  This  state- 
ment has  frequently  been  regarded  as  a  forgery  or  a  pious  tradition. 
But  not  all  of  Majorian's  legislation  is  extant;  moreover,  Mar- 
cian  in  451  confirmed  all  the  privileges  which  the  orthodox  emperors 
had  conferred  on  the  church  and  canceled  all  pragmatic  sanctions  that 
were  contrary  to  ecclesiastical  canons.  Cod.  Jttst.,  i,  ii,  12.  These  facts 
and  the  prevalent  opinion  that  the  glosses  of  the  Breviary  are  derived 
from  the  existing  commentaries  on  the  law,  suggest  that  there  was  good 
precedent  for  the  statement  of  a  repeal  of  Valentinian's  legislation. 
See  chap.  vi. 


207]  T^HE  EPISCOPAL  COURTS  gy 

enacted  by  Charlemagne/  Other  canonists  conscientiously 
perpetuated  the  tradition,  Gratian  accepted  it,  and  Inno- 
cent III  thought  to  correct  his  predecessors  by  ascribing 
the  authorship  of  the  law  to  Theodosius  the  Great. - 

The  prominence  which  the  clergy  acquired  in  Roman 
life  and  politics  during  the  later  empire  enabled  the  bishops 
to  exercise  an  influence  on  the  administration  of  justice 
which  was  independent  of  their  activity  as  ecclesiastical 
judges. 

The  custom  of  intercession  with  state  authorities  by  rhet- 
oricians, men  of  learning  or  wealth  in  behalf  of  the  unfor- 
tunate, or  of  a  patron  for  his  client,  was  one  of  long  standing 
in  Roman  public  life;  and  the  dependency  of  the  weak  upon 
the  strong  was  emphasized  by  the  economic  conditions  in 
the  later  empire.  Something  very  similar  to  this  interven- 
tion became  one  of  the  duties  of  the  episcopacy.  Ambrose 
of  Milan  wrote  to  Studius,  a  public  official,  urging  him  to 
adopt  the  conduct  of  Jesus  toward  the  woman  taken  in  adul- 
tery in  preference  to  the  legal  punishment  by  the  sword, 
while  the  intercessions  of  Basil  of  Csesarea  with  the  Em- 
peror Valens  in  behalf  of  the  province  of  Cappadocia  and  of 
Flavianus  for  the  city  of  Antioch  are  trite  illustrations  of 
the  influence  which  the  bishops  often  exercised  in  the  im- 
perial administration.^  The  right  of  the  judge  to  revise 
a  penal  sentence  opened  the  way  for  episcopal  intercession 
in  the  administration  of  criminal  law.  One  of  the  duties 
of  the  priesthood,  says  Ambrose,  is  "  to  snatch  the  con- 
demned from  death,  when  it  can  be  done  without  disturb- 
ance." *     Abuses  of  this  ecclesiastical  interference  in  behalf 

1  Capitula,  vi,  366. 

2  Decretum,  C.  XI,  qu.  i,  cc.  35-3";  Decretal.  Grcgor.  IX,  II,  i,  de 
judiciis,  c.  13. 

3  Amb.,  Ep.,  vii,  58;  Neander,  General  Church  History,  vol.  iii,  p.  190. 
■*  Amb.,  De  OMciis,  ii,  29. 


gg  EDICTS  OF  THE  THEODOSIAN  CODE  [208 

of  the  criminal  classes  led  Tlieodosius  and  Arcadius  to 
forbid  an  appeal  through  the  clergy  after  condemnation,  ex- 
cept in  those  cases  where  the  appeal  was  prompted  by  a 
sense  of  humanity  or  a  failure  of  justice/  Honorius  di- 
rected the  judges  to  produce  the  prisoners  from  their  cells 
on  the  Sabbath  and  to  ask  them  if  they  had  received 
humane  treatment.  The  conclusion  of  the  edict  encour- 
aged the  bishops  to  exhort  the  judges  to  fulfil  this  humane 
duty.  Indeed,  St.  Augustine  intimates  that  prisoners  were 
often  released  from  confinement  on  condition  that  they  be 
subjected  to  ecclesiastical  penance.^ 

Closely  associated  with  clerical  intercessions  was  the  re- 
fuge which  church  edifices  offered  the  unfortunate.  The 
protection  of  sacred  buildings,  altars,  or  statues  of  the 
emperor  was  a  custom  of  classical  law  inherited  from  that 
primitive  age  wdien  religious  institutions  afforded  the  only 
protection  from  a  system  of  justice  administered  by  self- 
help  or  popular  vengeance.  When  the  church  was  recog- 
nized as  a  legal  corporation,  and  the  clergy  began  to  have 
an  influence  in  public  life,  nothing  was  more  natural  than 

1  C.  Th.,  ix,  40,  15,  16.  The  interference  of  monks  in  judicial  pro- 
cedure was  responsible  for  an  edict  of  Theodosius  which  required  those 
following  the  monastic  life  "  to  inhabit  desert  places  and  vast  soli- 
tudes." Ibid.,  xvi,  3,  I.  The  law  was  repealed  two  years  after  its  en- 
actment (392).    Ibid.,  xvi,  3,  2. 

2  Ibid.,  ix,  3,  7.  This  interest  of  the  bishop  in  criminal  justice  was 
extended  in  the  legislation  of  Justinian  by  requiring  the  bishops  to  visit 
the  prisoners  every  Friday  and  Sunday,  examine  the  crimes  which  each 
prisoner  had  committed,  inquire  into  the  treatment  of  the  jailor,^  and 
report  to  the  state  authorities  whatever  was  done  contrary  to  good 
order.  Cf.  Cod.  Just.,  i,  iv,  22.  Aug.,  Ep.  153,  c.  3:  "Nam  quosdam 
quorum  crimina  manifesta  sunt,  a  vestra  severitate  liberatos,  a  societate 
tamen  removemus  altaris,  ut  poenitendo  placare  possint  quem  peccando 
contempserant,  seque  ipsos  puniendo."  This  letter  is  a  defense  and  jus- 
tification of  episcopal  intercession  which  had  been  criticized  by  Mace- 
donius  in  a  letter  to  Augustine,  which  precedes  the  letter  of  Augustine 
in  the  edition  of  Migne's  Patrologia. 


209]  T^iE.  EPISCOPAL  COURTS  99 

that  this  privilege  of  asykim  should  be  transferred  to  Chris- 
tian places  of  worship.  Indeed,  the  ecclesiastical  asylum 
was  recognized  by  custom  long  before  it  became  a  subject 
of  legislation ;  its  purpose  was  to  protect  the  one  seeking  it 
until  the  bishop  or  priest  might  make  intercession  in  his  be- 
half/ Principally  two  classes  of  people,  debtors  and  slaves, 
seem  to  have  taken  advantage  of  this  protection  and  aid 
offered  by  the  church.  The  same  year  that  Theodosius 
sought  to  restrict  episcopal  intercessions  he  required  the 
bishop  to  surrender  debtors  of  the  fiscus  who  sought  refuge 
in  the  churches  and  forbade  clerks  to  defend  them  or  to 
pay  their  debts."  Arcadius  sought  to  prevent  curials  from 
accepting  ecclesiastical  aid  by  requiring  those  clerks  who 
offered  them  pecuniary  assistance  to  pay  the  full  amount  of 
the  debts.  He  also  ordered  that  slaves  should  not  receive 
the  benefit  of  asylum  for  more  than  one  day ;  their  masters 
should  be  notified  by  the  church  officials  and  they,  out  of 
regard  for  those  to  whom  the  slave  had  fled,  should  refrain 
from  inflicting  punishment.^     Another  edict  designated  the 

1  Baronius,  Annales,  anno  324,  gives  a  law  of  Constantine  grant- 
ing asylum  rights  to  the  church.  This  is  a  forgery.  The  earliest 
mention  of  the  institution  in  ecclesiastical  sources  seems  to  be  the 
council  of  Sardica,  343  (c.  7),  where  the  members  agree  to  the  reso- 
lutions of  Hosius  that  aid  shall  not  be  denied  those  who  flee  to  the 
church.  Numerous  instances  of  the  exercise  of  the  protection  of  the 
church  are  given  by  Godefroy.  C.  Th.,  ix,  45,  i.  Purpose,  cf.  C.  Orange 
(441),  c.  5.  Eos  qui  ad  ecclesiam  confugerint  tradi  non  oportere,  sed 
loci  reverentia  et  intercessioni  defendi. 

2  C.  Th.,  ix,  45,  I. 

3  Ibid.,  45,  3  and  5.  The  first  of  these  edicts  was  enacted  through 
the  influence  of  Eutropius.  Chrysostom  of  Constantinople  had  defended 
a  number  of  individuals  from  the  violence  of  Eutropius,  who,  in  ven- 
geance, had  the  customary  asylum  privileges  of  the  church  limited  (398). 
The  following  year,  however,  Eutropius  sought  refuge  from  the  anger 
of  the  Goths  at  the  altar  of  the  church,  and  Chrysostom  interceded  with 
the  barbarians  for  him.  The  law  was  then  repealed.  Soz.,  viii,  7.  The 
latter  edict  is  dated  432. 


lOO  EDICTS  OF  THE  THEODOSIAN  CODE  [210 

altar  and  all  parts  of  the  church  buildings  as  places  of 
refuge;  no  one  seeking  asylum  there  should  be  removed  on 
pain  of  death ;  but  force  could  be  used  if  the  refugees  were 
armed  and  refused  to  deliver  their  weapons  at  the  command 
of  the  clerks ;  while  Honorius  recognized  the  space  of  fifty- 
paces  from  the  doors  of  the  church  as  holy  ground  and 
made  its  violation  a  sacrilege/ 

The  recognition  of  the  sanctity  of  the  priesthood  caused 
the  state,  in  the  reign  of  Theodosius  and  Gratian,  to  invest 
the  clergy  with  certain  privileges  in  the  secular  courts.  It 
was  forbidden  to  force  bishops  to  bear  witness  in  criminal 
cases,  a  privilege  which  was  extended  in  the  Justinian  law 
to  an  exemption  from  presenting  any  kind  of  evidence  in 
person.-  Priests  were  also  freed  from  all  liability  to  tor- 
ture,^ and  when  a  criminal  charge  was  made  against  a  clerk 
of  any  order  the  prosecutor  was  required  to  stake  a  pledge. 
If  the  prosecution  failed,  the  pledge  was  taken  by  the  fiscus, 
or  if  no  pledge  had  been  offered,  the  property  of  the  prose- 
cutor was  confiscated.*  Bishops  who  were  the  defendants 
in  actions  of  assault  and  battery  were  given  the  right  of  rep- 
resentation by  a  procurator  in  a  law  of  Valentinian  III.^ 
Endowed  with  these  privileges,  the  clergy  were  able  to  ex- 
tend their  influence  in  the  Justinian  law  and  to  maintain  a 

1  C.  Th.,  ix,  45,  4  of  431.  Const.  Sir.,  xiv.  The  latter  edict  also 
sanctions  intercessions.  The  influence  of  this  law  is  seen  in  the  Lex 
Romano.  Burgwidionum,  ii,  art.  5,  and  Lex  Visigothorum,  vi,  tit.  5,  c.  16. 

2  This  exemption  from  bearing  witness  was  perhaps  the  result  of  the 
movement  in  the  church  to  prohibit  appeals  of  ecclesiastical  cases  to  the 
emperor.  See  Council  of  Constantinople,  can.  5.  C.  Th.,  xi,  39,  8  (381). 
Novel.  Justin.,  123,  7. 

3C.  Th.,  xi,  39,  10  (385). 

4  This  law,  an  edict  of  Theodosius  the  Younger,  is  not  in  the  Theo- 
■dosian  code.  It  was,  therefore,  probably  repealed  shortly  after  it  was 
issued.     It  is  given  by  Haenel,  Corpus  Leguni,  p.  241. 

^  Nov.  Val.  Ill,  xxxiv. 


21 1 ]  THE  EPISCOPAL  COURTS  lOI 

recognition  of  their  peculiar  character  in  the  new  kingdoms 
that  soon  arose  in  the  west. 

The  interpretation  of  the  ideals  and  customs  of  a  nation 
or  society  by  means  of  its  legislation  is  one  of  the  most  diffi- 
cult of  problems.  If  the  historian  sixteen  centuries  in  the 
future  should  attempt  to  form  an  estimate  of  modern  moral- 
ity from  our  voluminous  penal  statutes,  would  he  conclude 
that  the  world  in  our  time  was  full  of  thieves,  cutthroats  and 
confidence  men,  or  would  he  see  in  that  legislation  evidence 
of  a  refined  sense  of  right  and  wrong,  an  attempt  to  add 
proportion  and  dignity  to  the  temple  of  justice?  When  we 
read  the  ecclesiastical  legislation  of  the  Roman  emperors 
we  find  a  somewhat  similar  problem  before  us.  Shall  we 
interpret  the  privileges  and  immunities  received  by  the 
church  as  a  protection  against  certain  phases  of  Roman  life 
not  in  harmony  with  Christian  ideals,  and  beneficent  in  that 
they  prepared  the  church  for  the  place  it  was  to  take  in 
the  civilization  of  the  future?  Or  shall  we  interpret  the 
career  of  the  church  by  the  legislation  on  heresy,  and  con- 
clude that  its  policy  was  selfish,  intolerant  and  antagonistic 
to  the  interests  of  the  empire?  These  questions  lead  us 
into  the  field  of  hypothesis;  each  student  will  settle  them 
for  himself  according  to  his  temperament.  But  there  are 
some  conclusions  in  regard  to  the  participation  of  the  epis- 
copacy in  the  legal  life  of  the  empire  on  which  all  may  agree. 

The  most  extensive  privilege  was  granted  by  Constantine, 
the  genuineness  of  whose  religious  conviction  has  been 
most  questioned.  Its  limitation  and  reform  were  made  by 
those  whose  piety  and  devotion  to  the  church  have  never 
been  doubted.  One  reason  for  this  must  have  been  that 
the  business  of  the  secular  courts  suffered  by  the  com- 
petition of  the  ecclesiastical  courts.  Indeed  the  civil  ad- 
judication in  which  the  episcopacy  was  involved  as  a  result 
of  Constantine's  legislation  was  a  burden  against  which  the 


I02  EDICTS  OF  THE  THEODOSIAN  CODE  [212 

spiritually  minded  clergy  protested.  Chrysostom  believes 
that  the  difficulties  of  clerical  arbitration  are  greater  than 
those  of  the  public  judge,  for  it  is  hard  for  him  to  find  the 
law,  and  having  found  it,  also  difficult  not  to  violate  it/ 
Augustine  finds  an  opportunity  in  his  Commentary  on  the 
Psalms  to  complain  of  those  people  who  voluntarily  seek 
the  bishop's  arbitration,  yet  when  sentence  has  been  given 
are  dissatisfied  because  they  can  not  appeal.  And  when  an 
African  council  had  charged  him  with  certain  affairs,  he 
made  a  contract  with  his  congregation  that  he  should  be 
released  for  four  days  of  the  week  from  the  secular  duties 
of  his  office.^ 

In  addition  to  their  work  as  civil  judges,  the  bishops 
were  active  in  the  administration  of  secular  property. 
Augustine  says  that  the  dying  left  the  interests  of  their 
widows,  children  and  property  to  the  care  of  the  church. 
Ambrose  defended  the  possessions  of  the  widow  and 
orphan  against  the  prosecution  of  the  imperial  fiscus.® 
Gregory  Nazianzus  declares  that  the  people  no  longer  seek 
in  the  priesthood  physicians  of  the  soul,  but  administrators 
of  moneys,  advocates  and  rhetoricians.*  This  activity  of 
the  bishop  in  the  administration  of  civil  law  must  have  done 
much  toward  the  development  of  a  vulgar  law  and  custom, 
differing  in  many  details  from  classical  jurisprudence. 
Truly,  in  the  language  of  the  worthy  Otto  of  Freising,  "  as 
the  empire  decreased,  the  church  adapted  itself  to  the  inter- 
mission, and  began  to  appear  in  great  authority."  ^ 

1  De  Sacer.,  iii,  18. 

2  Ps.  25,  13 ;  Ep.,  213.     Cf.  Po'ssidius,  Vita  Augustini,  19. 

3  De  OiHciis,  ii,  29. 

*Orat.,  32.  ^  Chronicon,  vii,  prologus. 


CHAPTER  VI 

The  Influence  of  the  Legislation  of  the  Theodosian 
Code  upon  Early  Mediaeval  Jurisprudence 

Any  consideration  of  that  legislation  by  which  the  church 
began  its  career  as  a  privileged  institution  whose  members 
were  exempt  from  the  economic  obligations  of  citizenship, 
whose  courts  were  recognized  as  sources  of  secular  justice, 
and  the  corruptors  of  whose  faith  were  punished  with  the 
loss  of  the  distinctive  rights  of  Roman  citizenship,  suggests 
the  relation  of  these  conditions  to  mediaeval  jurisprudence. 
By  what  process  did  the  ecclesiastical  law  of  the  Theodosian 
code  became  known  to  the  civilization  in  the  west  which 
succeeded  the  Roman  Empire,  and  to  what  extent  was  that 
law  influential  in  securing  the  privileges  which  the  clergy 
enjoyed  in  mediaeval  society? 

There  was  in  the  first  place  a  direct  transmission  of  the 
Roman  imperial  law,  as  it  existed  at  the  close  of  the  fifth 
century,  to  the  Teutonic  kingdoms  established  in  western 
Europe  through  the  Lex  Romana  Visigothonmi,  or  Brev- 
iary of  Alaric. 

In  the  second  place  there  was  a  direct,  although  not  ex- 
tensive influence  exercised  by  the  code  and  Novels  of  Jus- 
tinian upon  Italian  legal  development  in  the  sixth  and 
seventh  centuries  and  upon  the  later  development  in  those 
centuries  of  the  Visigothic  law  in  Spain. 

It  will  be  advisable,  first  of  all,  to  examine  the  Justinian 
code  and  its  relation  to  the  earlier  imperial  law  as  well  as 
its  immediate  influence  upon  legal  development  in  Italy. 
213]  103 


I04  EDICTS  OF  THE  THEODOSIAN  CODE  [214 

One  of  the  first  problems  that  confronted  Justinian  was 
to  bring  order  out  of  the  confused  ecclesiastical  conditions 
in  the  empire,  and  there  is  no  better  evidence  of  the  despotic 
strengfth,  if  not  the  wisdom,  of  his  administration,  than  the 
policy  by  which  this  end  was  secured.  Believing  "  faith  in 
God"  and  "good  order  in  the  church"  the  only  guarantees 
for  the  existence  of  monarchy,  he  revised  and  extended  the 
privileges  of  the  clergy  and  established  an  even  more  inti- 
mate union  of  church  and  state  than  had  previously  existed. 
The  civil  as  well  as  the  ecclesiastical  litigation  of  the  clergy- 
was  relegated  to  the  jurisdiction  of  the  bishops,  and  the 
participation  of  ecclesiastical  courts  in  criminal  processes 
against  the  clergy  was  recognized,*  On  the  bishops  were 
conferred  the  rights  of  supervising  public  works  and  muni- 
cipal expenditures;  the  prerogative  of  nominating  candi- 
dates for  the  administrative  service  of  the  empire ;  the  privi- 
lege of  assisting  in  the  installation  of  governors;  the  duties 
of  publishing  new  imperial  legislation,  of  visiting  prisons, 
and  of  hearing  the  complaints  of  the  oppressed  and  unfor- 
tunate.^ The  privilege  of  appealing  to  the  bishop  in  civil 
and  criminal  processes,  and  from  him  directly  to  the  emperor 
was  recognized,  and  at  the  request  of  the  litigants,  the 
bishop  might  sit  with  the  secular  judge  in  the  civil  court.* 
That  the  unity  and  supremacy  of  the  civil  authority  were 
maintained  while  such  machinery  of  government  existed  is 
sufficient  witness  of  Justinian's  ability  to  realize  his  con- 
ception of  government. 

The  legislation  above  summarized  was  closely  related  to 
the  rise  of  ecclesiastical  influence  in  Italy  which  was  coin- 

^  Nov.,  Ixxix ;  cxxviii,  21. 

^  Nov.,  cxxviii,  16;  Cod.  Just.,  i,  iv,  26;  Nov.,  cxlix,  i;  viii,  14;  vi, 
epilogue  i ;  Cod.  Just.,  i,  iv,  22,  26. 

^  Nov.,  Ixxvi.  I,  4,  9;  ibid.,  2;  Cod.  Just.,  1,  iv,  7. 


215]  '^^^  INFLUENCE  OF  THE  LEGISLATION  105 

cident  with  the  collapse  of  the  civil  administration  during 
the  later  sixth  and  early  seventh  centuries.  Justinian's  law 
books  were  published  in  Italy  after  the  reconquest  of  the 
peninsula  in  552,  and  a  pragmatic  sanction  extended  the 
jurisdiction  of  the  Novels  to  the  west.^  That  the  clergy 
was  familiar  with  them  is  shown  by  the  papal  correspon- 
dence of  the  time.  Pelagius,  a  contemporary  of  Justinian, 
repeats  the  rules  of  the  Novels  which  restrict  civil  prosecu- 
tions against  clerks  to  the  jurisdiction  of  the  bishop  and 
prohibit  the  alienation  of  church  property.  Frequent  re- 
ferences to  the  rights  and  privileges  given  the  clergy  by  Jus- 
tinian were  made  by  Gregory  the  Great.  As  soon  as  he  was 
elected  Pope,  he  opened  a  correspondence  with  the  Emperor 
Maurice,  the  Exarch  of  Ravenna  and  various  officials  of 
Africa,  Sardinia  and  Naples.  He  received  copies  of  new 
laws  enacted  by  the  emperor,  which  he  doubtless  published 
at  Rome,  and  reported  to  Constantinople  the  oppression  of 
the  poor  by  the  imperial  officials.  He  petitioned  the  exarch 
for  the  repair  of  aqueducts  and  other  public  works  at  Rome, 
while  his  rights  as  bishop  to  supervise  municipal  finance  and 
to  interfere  in  behalf  of  justice  are  illustrated  by  an  eloquent 
letter  to  Leontius. 

That  official,  a  representative  of  the  central  government, 
examined  Libertinus,  an  ex-prefect  of  Rome,  found  him 
guilty  of  squandering  public  money,  and  had  him  scourged. 
Gregory,  incensed  at  the  infliction  of  such  a  penalty  upon  a 
Roman  citizen,  reproved  Leontius  and  declared,  "  Had  I 
found  the  accused  guilty,  it  would  have  behoved  me  to  warn 
you  by  letter  and  had  I  failed  to  obtain  your  attention,  I 
should  then  have  turned  to  the  emperor."  -     Other  letters 

1  Kruger,  Geschichte  der  Quellcn  und  Litemtur  des  romischen 
Rechts,  p.  354. 

2  Greg.,  Ep.,  x,  51.      This  letter  is  interesting  for  the  fact  that  it  in- 


lo6  EDICTS  OF  THE  THEODOSIAN  CODE  [216 

show  the  Bishop  of  Rome  interceding  in  behalf  of  the  un- 
fortunate, encouraging  his  fellow  bishops  to  bring  influence 
to  bear  on  the  secular  judges  in  behalf  of  justice,  and  to  send 
complaints  against  public  officials  to  Rome,  on  the  plea  that 
"  to  coerce  the  violent  laity  is  not  to  act  against  the  law 
but  to  bring  a  support  to  it."  ^ 

Tlie  letters  of  Gregoi-y  also  suggest  that  he  was  familiar 
with  Justinian's  legislation  regarding  the  clergy  and  church 
property.  He  claimed  for  clerks  the  right  to  have  civil 
cases  in  which  they  were  defendants  heard  by  the  bishop, 
and  interceded  with  the  civil  officials  to  prevent  the  forced 
service  of  ecclesiastics  on  public  works.^ 

The  law  of  Arcadius  which  recognized  injury  to  church 
property  as  sacrilege  had  found  its  way  into  the  Justinian 
code.  Tothis Justinian  added  the  prohibitionof  the  alienation 
of  church  property  except  for  the  release  of  captives  or  other 
pious  cause;  provisions  that  what  the  abbot  or  bishop  ac- 
quires in  office  is  the  property  of  the  foundation;  and  that 
the  property  of  clerks  dying  intestate  and  without  heirs  re- 
verts to  the  church.^  These  rules  made  by  Justinian  are 
also  reflected  in  the  letters  of  Gregory,  and  his  decisions  on 

timates  that  conflicts  between  ecclesiastical  and  civil  jurisdiction  might 
frequently  occur.  Nov.,  cxxviii,  16,  gives  the  bishop  and  a  committee 
of  five  citizens  the  authority  to  examine  public  accounts  and  to  remove 
guilty  officials.  This  and  similar  legislation  illustrates  how  the  church 
stepped  in  and  took  the  responsibilities  of  the  decaying  municipal 
organzation.  Cf.  Cod.  Just.,  i,  S5>  8,  which  gave  the  bishop  power  to 
participate  in  the  election  of  defensores.  Justinian,  in  the  Pragmatic 
Sanotion  of  554,  gave  the  bishops  of  Italy  authority  to  nominate 
judges.  Aliae  aliquot  constitutioncs,  i,  in  Kriegel,  Corpus  Juris  Civilis, 
vol.  iii. 

!£/).,  iii,  I,  5,  9;  ix,  27,  47;  xi,  3;  xiv,  15.  For  the  legislation  of 
the  code  which  gave  the  right  to  interfere  in  behalf  of  justice,  see 
preceding  page. 

~  Ep.,  xi,  27;  xi,  72,  99;  >=^i>  S;  C.  J.,  i,  iii,  2. 

^  Nov.,  cxxxi,  13;  cxx,  10;  C.  /.,  I,  ii,  2;  Nov.,  cxxiii,  38. 


217]  -^^^  INFLUENCE  OF  THE  LEGISLATION  107 

the  alienation  of  church  property  found  their  way  into  the 
canon  law/ 

Equally  important  for  mediasval  conditions  was  Gregory's 
activity  in  the  administration  of  testamentary  law.  Justin- 
ian made  the  bishops  the  general  guardians  in  the  execution 
of  charitable  bequests  and  ordered  that,  if  the  executors 
failed  to  fulfil  the  provisions  of  such  bequests,  the  bishop 
should  intercede  for  a  legal  execution,  that  the  reservation 
of  the  Falcidian  Fourth  for  the  benefit  of  the  heirs  should 
be  denied,  and  that  the  whole  property  should  be  appro- 
priated by  the  bishop  for  pious  purposes.^  By  virtue  of 
this  authority  Gregory  informed  the  Duke  of  Sardinia  that 
benevolent  donations  must  be  carefully  executed,  instructed 
the  deacon  Castorius  to  see  that  the  terms  of  a  testament  in 
which  the  church  was  a  beneficiary  "  should  be  fulfilled  with- 
out impediment,"  decided  that  a  bishop's  estate  and  the 
property  accumulated  before  his  service  in  the  episcopacy 
should  revert  to  his  son,  and  interfered  for  the  just  execu- 
tion of  a  legacy  in  favor  of  the  children  of  two  freedmen.^ 

In  the  light  of  this  extensive  activity  of  the  episcopacy  in 
the  administration  of  justice,  why  should  not  ecclesiastical 
decisions  be  recognized  as  a  source  of  law?  This  was  the 
conclusion  of  the  clergy,  and  it  is  well  illustrated  by  the  de- 
velopment of  testamentary  law.  While  Justinian  gave  es- 
pecial protection  to  benevolent  bequests,  he  did  not  con- 
template any  alteration  in  the  customary  forms  of  testa- 
ment ;  in  fact,  he  clearly  stated  that  he  desired  to  avoid  such 
a  change.*      But  there  was  a  feeling  on  the  part  of  the 

!£/>.,  I,  68;  vi,  126;  vii,  13,  38;  viii,  34;  x,  i;  xi,  10.  Cf.  D.,  xii, 
qu.  2,  cc.  13-14- 

2  Nov.,  cxxxi,  II,  12. 

^  Ep.,  i,  48;  V,  28;  iv,  37;  x,  5.  Interference  in  the  latter  case  was 
the  result  of  an  appeal  to  Gregory. 

*  Cod.  Just.,  i,  2,  19. 


Io8  EDICTS  OF  THE  THEODOSIAN  CODE  [218 

clergy  that  testaments  in  favor  of  the  church,  especially 
clerical  testaments,  should  not  be  limited  by  the  customary 
forms  of  the  civil  law/  Gregory  the  Great  shared  this 
opinion,  and  in  a  letter  to  the  subdeacon  of  Sicily  ordered 
that  the  death-bed  wish  of  a  certain  woman  in  the  interest 
of  the  church,  although  verbally  expressed,  should  be  ful- 
filled." This  and  a  passage  in  the  Gospel  of  St.  Matthew 
were  the  sole  precedents  for  the  decree  of  Alexander  III 
which  made  the  last  will  expressed  in  the  presence  of  the 
priest  and  two  or  three  witnesses  rescind  any  previous 
testament.^ 

The  first  decided  influence  of  the  ecclesiastical  law  of  the 
Roman  codes  on  the  secular  jurisprudence  of  the  middle 
ages  is  found  in  the  legislation  of  the  Visigoths.  Before 
the  migration  of  this  nation  into  southern  Europe  its  laws 
and  customs  had  come  under  the  influence  of  Roman  in- 
stitutions, and  with  the  formation  of  a  monarchy  in  south- 
ern Gaul  and  Spain  that  influence  increased.  Visigothic 
institutions  of  private  property  in  land,  of  loans  and  interest, 
of  matrimony  and  of  testament  have  their  origin  or  received 
some  modification  in  the  contact  with  the  more  civilized 
Romans.  While  other  conditions  favored  the  union  of  the 
two  peoples  into  one  nation,  they  were  separated  by  a  re- 
ligious problem.  The  Goths  were  Arians,  their  Roman 
subjects  were  Catholics.  Very  little  is  known  of  the  ec- 
clesiastical policy  of  the  early  Visigothic  kings;  they  con- 
ferred gifts  and  favors  upon  the  Arian  church,  but  their 
legislation  does  not  reveal  any  clerical  influence  such  as  that 
exercised  after  their  conversion  to  Catholicism,  while  their 

1  Con.  Lyons  (567),  c.  2. 

-  Ep.  ii,  22. 

8  C.  13,  X,  3,  26. 


219]  '^^^^  INFLUENCE  OF  THE  LEGISLATION  109 

attitude  toward  the  Catholics  was  one  of  toleration,  except 
when  pohtical  conditions  made  persecution  necessary/ 

Such  were  the  conditions  when  the  codification  of  Visi- 
gothic  law  beg-an.  Written  laws  were  issued  before  the 
reign  of  Euric,  but  to  him  is  attributed  the  first  national 
code  whose  jurisdiction  included  cases  between  Goth  and 
Roman  as  well  as  purely  Gothic  litigation.-  There  was  no 
statement  that  cases  in  which  Gothic  interests  were  not  in- 
volved should  be  heard  according  to  Roman  law,  but  the 
course  of  later  legislation  indicates  that  this  was  the  cus- 
tom. The  sources  of  Roman  law,  however,  which  included 
the  Hermogenian,  Gregorian  and  Theodosian  codes,  the 
Theodosian  Novels  and  the  writings  of  the  jurists,  and  in- 
terpretations of  law  now  unknown  were  too  voluminous, 
their  language  was  not  sufficiently  clear  for  popular  use,  and 
custom  had  also  made  changes  in  their  interpretation. 
These  facts  and  the  opportunity  to  conciliate  his  Catholic 
subjects,  who  had  suffered  persecution  under  Euric,  and 
who,  it  was  feared,  might  support  the  Franks  in  the  conflict 
with  that  nation  which  seemed  imminent,  led  Alaric  II  to 
undertake  a  compilation  of  Roman  law  for  use  in  purely 
Roman    litigation.      This    was   the  Lex  Romana    Visigo- 

1  Dahn,  Kdnige  der  Gerjnanen,  vol.  vi,  p.  277-  Alaric  I  recognized 
the  ecclesiastical  asylum  of  the  Roman  law ;  Gregory  the  Great  gives 
evidence  that  the  property  rights  oif  the  Catholic  church  in  Aries  were 
respected;  Athaulf,  third  king,  married  a  Catholic,  and  there  is  con- 
flicting evidence  regarding  the  policy  of  Theoderic  I,  while  the  toler- 
ance of  Theoderic  II  was  praised  by  Sidonius.  The  Catholic  his- 
torian of  the  Spanish  church,  Gams,  emphasizes  the  religious  conflict 
{Kirchcngeschichtc  von  Spanicn),  while  secular  historians,  notably 
Dahn,  regard  the  conflict  as  occasional  and  intermittent  and  as  the 
result  of  political  complications. 

2  For  the  legislation  of  Euric  and  his  predecessors,  see  Zeumer, 
Geschichte  dcs  west-gothischcn  Gcsctzgcbung,  Nciics  Archiv.,  Bd.  xxiii, 
pp.  423,  468. 


no  EDICTS  OF  THE  THEODOSIAN  CODE  [220 

thorum,  generally  known  as  the  Breviary  of  Alaric.^  It  is 
the  work  of  a  commission  of  provincial  Roman  lawyers  and 
bishops.  It  was  approved  by  a  council  of  bishops  and 
nobles  and  was  then  published  in  506  with  the  command  that 
in  the  future  no  other  source  of  law  should  be  used  by 
Roman  subjects.  In  its  legislation  and  interpretations  of 
law,  which  were  derived  from  existing  glosses,  we  have  the 
Roman  law  of  the  fifth  and  early  sixth  centuries  as  it  was 
applied  in  the  courts.^  A  review  of  its  provisions  relating 
to  the  church  and  clergy  will  illustrate  their  position  in  an 
age  when  the  civilizations  of  German  and  Roman  were 
blending  and  ecclesiastical  aims  were  coming  to  dominate 
both. 

The  political  conditions  under  which  the  Breviary  was 
compiled  prevented  any  extensive  reproduction  of  the  im- 
perial edicts  against  heresy.  Only  two  of  those  in  the 
Theodosian  code  were  included,  one  in  which  Honorius  or- 
dered the  "  one  and  true  Catholic  faith  "  to  be  observed  in 

1  The  last  edition  of  this  code  was  published  by  Haenel  {Lex  Romana 
Visigo thorum,  Leipsic,  1848).  Conrat  has  recently  published  a  system- 
atic arrangement  of  its  material  in  German  translation,  with  references 
and  quotations  from  the  text,  after  the  fashion  of  the  German  hand- 
books of  public  and  private  law.  (Breviarium  Alaricianum;  Romisches 
Recht  itn  frdnkischen  Reich  in  systematischer  Darstelhmg,  Leipzig, 
1903-) 

2  The  glosses  of  the  Breviary  were  formerly  regarded  as  unimport- 
ant. But  legal  historians  now  recognize  that  they  represent  the  cus- 
tom of  the  later  fifth  and  sixth  centuries ;  indeed,  that  they  are  derived 
from  older  glosses  now  lost,  and  therefore  are  to  be  taken  as  a  direct 
survival  of  later  classical  law.  Cf.  Haenel,  Lex  Romana  Visigothorum, 
p.  x;  Blume,  in  Bekke/s  und  Muther's  Jahrbuch  des  deutschen  Rechts, 
Bd.  ii,  203;  Fitting,  Zeitschift  fiir  Rechtsgeschichte,  Bd.  xi,  228.  On  the 
other  hand,  one  writer  has  rejected  the  view  that  the  glosses  are  de- 
rived from  previous  commentaries  (Degenkalb  in  Kritische  Vicrteljahr- 
schrift  fiir  Gesetzgehung  und  Rcchtswissenschaft,  Bd.  xiv,  505).  For  a 
summary  of  the  discussion,  see  Karlowa,  Romische  Rechtsgeschichte, 
Bd.  i,  p.  977- 


22 1 ]  THE  INFLUENCE  OF  THE  LEGISLATION  m 

Africa,  the  other  his  confirmation  of  the  legislation  of 
Theodosius,  while  the  Novels  of  Theodosius  II  and  Valen- 
tinian  III,  enacted  when  heresy  was  no  longer  a  political 
problem,  were  allowed  to  remain  unaltered/  There  is  also 
only  one  law  against  apostasy,  that  of  Valentinian  II,  which 
punished  the  apostate  with  loss  of  testamentary  rights;  but 
converts  to  Judaism  were  threatened  with  confiscation  of 
property,  and  traffic  in  Christian  slaves  by  Jews  was  pro- 
hibited." 

A  more  decided  evidence  of  the  influence  of  the  clergy 
in  the  work  of  codification  is  the  conception  of  church  prop- 
erty. Paraphrasing  passages  in  the  Institutes  of  Gains  and 
the  Sentences  of  Paul  are  statements  that  "  things  of  divine 
law  are  churches,  that  is  temples  of  God,  and  such  patri- 
monies and  properties  as  are  among  the  rights  of  churches;" 
that  an  agreement  to  alienate  religious  property  is  invalid, 
and  sacrilege  is  punishable  by  casting  the  offender  to  the 
wild  beasts;  and  that  only  after  debts  and  legacies  to  the 
churches  "  in  honor  of  God  "  have  been  deducted  from  an 
estate,  could  the  rule  of  the  Falcidian  Fourth  be  applied  in 
the  interest  of  the  heirs. ^ 

The  laws  treating  of  episcopal  jurisdiction  and  the  rela- 

1  C.  Th.,  xvi,  5  (Lex  Romana)  ;  Nov.  Theod.,  i,  8,  9;  Nov.  Val,  i,  i. 

-Lex  Romana  (C  Th.,  xvi,  2,  i ;  3,  2;  4,  i,  2). 

3  Gaius,  ii,  i  (Haenel,  p.  322;  Conrat,  p.  791).  "  Omnes  (itaque)  res 
aut  nostri  iuris  sunt,  aut  divini,  aut  publici.  .  .  .  Divini  sunt  ecclesiae,  id 
est,  templa  Dei,  vel  ea  patrimonia  ac  substantiae,  quae  ad  ecclesiastica 
iura  pertinent."    Ibid.,  ii,  9,  5  (Haenel,  p.  334;  Conrat,  p.  791). 

Paul,  iv,  3  (Haenel,  p.  400;  Conrat,  p.  891).  "Lex  Falcidia  similiter 
et  Pegasianum  Senatus  consultiun,  factum  hereditarii  debiti  ratione  et 
separatis  his,  quae  in  honorum  Dei  ecclesiis  relinquuntur,  quartam  hered- 
itatis  ex  omnibus  ad  scriptum  heredem  consuit  pertinere."  The  right  of 
the  church  to  receive  bequests  and  to  receive  the  property  of  clerks 
dying  intestate  and  without  heirs  was  also  recognized.  C.  Th.,  v,  3,  i. 
The  Novels  of  Majorian  (i,  i,  7)  and  Valentinian  HI  (xii,  i,  5)  were 
also  included.     Sacrilege,  Paul,  v,  21,  i. 


112  EDICTS  OF  THE  THEODOSIAN  CODE  [222 

tion  of  the  clergy  to  the  secular  courts  are  also  important. 
The  edict  of  Constantius  which  allowed  criminal  charges 
against  bishops  to  be  examined  by  a  synod  of  bishops  and 
that  of  Gratian  which  required  criminal  accusations  against 
clerks  to  be  heard  in  the  secular  courts,  were  re-enacted.^ 
The  Novel  of  Valentinian  Hmiting  the  civil  jurisdiction  of 
bishops  over  clerks  and  laymen  to  cases  in  which  both 
parties  submitted  to  his  arbitration  was  also  included,  but 
the  gloss  states  that  Majorian  repealed  the  restriction  so  far 
as  it  applied  to  clerks."  Ecclesiastical  tribunals  were 
granted  exclusive  jurisdiction  over  religious  cases  and 
church  edifices  were  accorded  the  privilege  of  asylum,  while 
the  exemption  of  the  clergy  from  the  economic  obligations 
of  citizenship  and  the  legislation  of  Valentinian  and  Major- 
ian defining  the  relation  of  the  curiales  to  the  clerical  pro- 
fession were  reproduced.^ 

Thus  all  the  essential  elements  of  that  legislation  by 
which  the  clergy  secured  its  privileged  position  in  the  later 
empire,  passed  into  the  Breviary.  It  was  by  far  the  most 
widely  known  source  of  Roman  law  prior  to  the  twelfth 
century,  and  was  applied  in  the  courts  of  southern  Europe. 
The  church,  moreover,  claimed  the  Roman  as  its  personal 
law.  We  have  therefore  in  the  Breviary  a  statement  of  the 
position  of  ecclesiastical  institutions  in  the  custom  of  the 
early  mediaeval  courts. 

The  purpose  of  the  Breviary  was  to  furnish  a  summary 
of  Roman  law  for  use  in  disputes  between  Romans 
when  Goths  and  Romans  were  living  as  neighbors  under 
the  same   royal  authority,  but  preserving  their  respective 

1  C.  Th.,  xvi,  I,  2,  3  (Lex  Romana).  Bishops  were  also  exempted 
from  torture.     C.  Th.,  xi,  14,  5. 

2  See  preceding  chapter,  p.  96,  n.  2. 

3  C.  Th.,  xvi,  I,  3,  4,  5  {Lex  Romana)  ;  C.  Th.,  ix,  34,  i  (Lex 
Romana)  ;  Nov.  Val,  III,  xii   (L.  R.)  ;  Nov.  Maior.,  1    (L.  R.). 


223]  ^^^  INFLUENCE  OF  THE  LEGISLATION  113 

laws  and  customs.  An  important  step  toward  the  union  of 
the  two  races  was  made  by  Leovigild,  who  revised  the  code 
of  Euric,  repealed  the  ancient  prohibition  of  the  marriage 
of  Goth  and  Roman  and  adopted  the  Roman  system  of  blood 
relationship  and  the  theory  of  the  equality  of  sons  and  daugh- 
ters in  rights  of  succession.^  The  conversion  of  his  son  Rec- 
cared  to  Catholicism,  and  the  recognition  of  that  faith  as  the 
national  religion,  removed  the  last  influence  which  separated 
Goth  and  Roman.  It  was  now  possible  to  formulate  a  na- 
tional code  of  law  applicable  to  all  subjects  of  the  kingdom. 
This  was  begun  by  Reccessvinth.  His  Liber  ludiciorum, 
published  in  the  middle  of  the  seventh  century,  was  a  com- 
pilation of  the  legislation  of  his  predecessors  and  his  own. 
It  was  intended  to  displace  all  other  sources  of  law  and  to 
it  all  persons  and  people  of  the  kingdom  were  subject."  Re- 
vised by  Ervig  and  enlarged  by  Egica,  it  is  known  as  the 
Lex  Visigothornm  and  it  was  in  theory  at  least  the  basis  of 
Spanish  jurisprudence  until  the  thirteenth  century.^ 

An  examination  of  this  code  with  reference  to  the  sources 
of  its  legislation  leads  to  the  conclusion  that,  in  addition  to 
Visigothic  law  and  custom  and  the  Breviary,  the  Justinian 
jurisprudence  was  well  known  in  Spain.  Tlie  language  of 
the  Lex  Visigothorum  has  never  the  dignity  nor  grace  of 

1  The  restriction  upon  intermarriage  of  Goth  and  Roman  was  perhaps 
caused  by  the  policy  of  the  CathoHcs,  who  hoped  to  convert  the  Goths 
from  Arianism  through  mixed  marriages.  The  marriage  of  Roman 
and  barbarian  was  also  prohibited  in  the  Breviary.  C.  Tli.,  xii,  tit.  14 
(L.  R.). 

2  Date,  between  the  years  652  and  654.  Zeumer,  Gcscliicltte  dcr  zvcst- 
gothischen  Gesetzgebung  (Nciies  Archiv.,  Bd.  xxiii,  p.  486).  Jurisdic- 
tion, Lex  Visigothorum,  ii,  i,  9.  The  words  Liber  ludiciorum  appear 
in  the  oldest  manuscripts.  Zeumer  uses  the  name  Lex  Quoniam  from 
the  first  words  of  the  Edict  of  Reccesvind,  by  which  it  was  promul- 
gated.    It  is  also  known  as  the  Lex  Visigothorum  Recccssznndiana. 

3  Time  of  revision  and  enlargement,  681  and  693.  Cf.  Zeumer,  N.  A., 
Bd.  xxiii,  pp.  483.  488. 


114  EDICTS  OF  THE  THEODOSIAN  CODE  [224 

the  Latin  of  the  second  and  third  centuries,  which  was  so 
largely  reproduced  in  the  eastern  law  books,  but  the  division 
of  Reccessvinth's  work  into  twelve  books,  the  number  of  the 
Justinian  code,  the  apparent  correspondence  of  many  Visi- 
gothic  formulas  with  the  law  of  the  Digest,  the  precedent 
which  the  Justinian  law  offers  for  the  Visigothic  edicts  on 
testament,  representation,  procedure  and  evidence,  indicate 
an  influence  of  the  later  Roman  law  on  Visigothic  juris- 
prudence in  the  period  of  its  maturity.  This  probability  is 
strengthened  by  the  fact  that  from  554  to  624  there  was  a 
Byzantine  province  on  the  Levantine  coast  of  Spain  whose 
capital  was  Catalonia.  Also,  as  late  as  the  ninth,  probably 
the  tenth,  century,  a  collection  of  Spanish  laws  included  along 
with  some  of  the  legislation  of  Euric  and  the  Liber  Ittdi- 
ciorum,  imperial  constitutions,  portions  of  the  Institutes 
and  Novels  of  Justinian,  and  an  epitome  of  the  Breviary; 
while  the  purpose  of  the  collection  is  to  make  known  the 
"  Roman  laws  "  as  "  promulgated  by  our  Lord  Justinian." 
In  the  light  of  these  facts,  it  is  probable  that  Reccessvinth's 
prohibition  of  the  future  use  of  Roman  and  foreign  laws 
refers  to  the  law  books  of  Justinian  as  well  as  to  the 
Breviary.^ 

Other  evidence  of  the  survival  of  the  Justinian  law  in 
Spain,  pertinent  to  the  theme  of  this  chapter,  is  found  by 
a  comparison  of  its  legislation  on  the  episcopal  courts  with 
that  of  the  Lex  Visigothorum. 

1  De  Urena  (Literatura  Juristica  Espanola,  vol.  i,  p.  294)  thinks  that 
the  prohibition  refers  to  the  Justinian  law  books  alone  and  not  to  the 
Breviary.  The  collection  referred  to  is  in  the  Holkham  Library,  Nor- 
folk, England.  It  has  been  published  by  Prof.  A.  Gaudenzi,  of  Bologna, 
under  the  title,  Un'  antica  compilazione  di  dirrito  Romano  e  Visigoto 
con  alcuni  frammenti  delle  leggi  di  Eurico  (Bologna,  1886).  A  por- 
tion of  it  has  been  reprinted  in  the  Neues  Archiv.,  Bd.  xxiii,  p.  389.  A 
collection  of  Roman  law  was  also  made  by  Petrus  de  Granon  in  the 
tenth  century,  which  suggests  a  knowledge  of  Justinian  legislation.  Cf. 
Nicholas  Antonio,  Bibliotheca  Hispana   Vctus,  vol.   i,  p.  518. 


225]  -^^^  INFLUENCE  OF  THE  LEGISLATION  115 

Three  edicts,  one  of  Chindasvinth,  one  of  Reccessvinth, 
and  one  of  Ervig,  determined  the  place  of  the  episcopal 
court  in  the  legal  system  of  the  Visigothic  kingdom  after 
the  conversion  of  the  Visigoths  to  Catholicism/  The  first 
of  these  provides  that,  if  any  one  engaged  in  civil  litigation 
believes  that  the  decision  of  the  judge  has  been  influenced 
by  prejudice,  that  official,  with  the  aid  of  the  bishop,  shall 
review  the  case  and  issue  a  new  decision.  If  there  is  still 
dissatisfaction,  appeal  may  be  made  to  the  royal  court,  after 
the  joint  sentence  of  bishop  and  judge  has  been  executed, 
on  the  plea  of  unjust  judgment.  If  the  appeal  is  then  justi- 
fied, the  judge  and  bishop  shall  suffer  the  penalty  of  unjust 
judgment;  if  it  is  rejected,  the  appellant  must  suffer  in  the 
same  manner.  The  second  edict  recognizes  the  bishop  as  the 
protector  of  the  common  people  (pauperes)  and  establishes 
a  procedure  in  case  the  judge  shall  refuse  to  re-hear  the  case 
with  the  bishop.^  The  bishop  may  then  make  an  indepen- 
dent decision  which  the  count  must  execute;  and  if  the 
bishop  refuses  to  hear  the  appeal  or  the  count  hesitates  to 
enforce  the  episcopal  decision,  each  shall  forfeit  one-fifth 
of  the  value  of  the  suit.  The  third  law  reverts  to  the  course 
of  action  outlined  in  the  first.  Bishop  and  judge  shall  hear 
the  appeal  together;  if  they  can  not  agree,  each  shall  com- 
mit his  opinion  to  writing  and  send  it  to  the  king,  whose 
decision  shall  be  final. 

1  Lex  Vis.,  ii,  i,  24  (Chindasvinth),  30A  (Reccessvinth),  30B  (Ervig). 
In  the  interpretation  of  these  laws  I  have  followed  Zeumer,  Nencs 
Archiv.,  Bd.  xxiv,  pp.  79-88.  References  to  the  text  are  to  his  recent 
edition  of  the  Lex  Visigothoruin  in  the  Monumenta  Germania,  Leges, 
sec.  2,  torn,  i   (1903). 

-  Different  definitions  have  been  given  the  word  pauperes.  Dahn  and 
the  older  writers  assign  it  a  literal  meaning,  the  poor  or  unfortunate. 
Zeumer  thinks  it  refers  to  the  people  as  opposed  to  the  nobles  and  civil 
authorities.  In  such  a  sense  it  was  used  by  the  councils  of  Toledo 
(iv,  c.  32)  and  Tours  (ii,  c.  22,).    Neues  Archiv.,  Bd.  xxiv,  pp.  80-81. 


Il6  EDICTS  OF  THE  THEODOSIAN  CODE  [226 

The  only  precedent  for  this  legislation  is  the  eighty-sixth 
Novel  of  Justinian,  and  a  comparison  leaves  the  impression 
that  the  one  was  the  source  of  the  other/  Justinian  re- 
quired the  bishop  to  hear  the  case  along  with  the  civil 
judge  suspected  of  prejudice,  gave  him  the  power  to  re- 
vise the  sentence  of  the  civil  court,  provided  for  a  final 
appeal  to  the  emperor,  and  inflicted  the  Roman  penalty  for 
unjust  judgment  on  the  bishop  who  gives  an  illegal  decision, 
or  on  the  appellant,  if  unsuccessful  in  his  appeal.  In  one 
essential,  however,  the  Justinian  law  differs  from  the  Visi- 
gothic,  in  regard  to  the  stage  of  the  procedure  when  appeal 
may  be  made.  In  the  former,  appeal  from  a  suspected 
judge  is  in  order  only  before  the  formal  joining  of  issue 
{litis  contesfatio)  ;  in  the  latter,  the  appeal  may  be  made 
to  the  bishop  at  any  stage  of  the  process.  This  deviation 
is  explained  by  a  Novel  of  Valentinian,  incorporated  in  the 
Breviary,  which  permits  appeal  without  any  limitation  by 
the  regular  procedure." 

This  reception  and  influence  of  the  ecclesiastical  law  of 
Justinian  in  Spain  is  one  of  the  most  notable  manifestations 
of  that  confusion  of  the  civil  and  ecclesiastical  authorities 
which  was  so  notable  in  the  centuries  of  transition  from 
classical  to  mediaeval  civilization.  It  aided  in  that  confusion 
of  law  and  morality,  of  civil  and  ecclesiastical  powers  that 
followed  the  conversion  of  the  Goths  to  Catholicism  and 
continued  to  be  one  of  the  characteristics  of  Spanish  life 
as  late  as  the  thirteenth  century,  when  the  earliest  of  the 
constitutional  monarchies  of  Europe  knew  no  conflict  be- 
tween church  and  state,  for  the  two  institutions  were  inex- 
tricably blended  in  the  law  and  custom  of  the  realm. 

1  Nov.,  Ixxxvi,  was  probably  known  in  Spain  through  the  Epitome 
of  Julian  (Jul.,  Ixix). 

^  Nov.  Just.,  liii,  3;  Jul.,  xlvii;  Nov.  Vol.,  xxxiv,  16,  xii  (Lex 
Romano). 


227]  THE  INFLUENCE  OF  THE  LEGISLATION  ny 

The  evidence  for  the  influence  of  the  Justinian  jurispru- 
dence on  the  ecclesiastical  law  of  the  Prankish  empire  is 
not  so  conclusive  as  that  just  reviewed.  The  Franks  were 
not  so  susceptible  to  Roman  influence  as  the  Goths,  and  their 
kingdom  was  far  more  Germanic  in  population  and  institu- 
tions than  that  of  their  neighbors  beyond  the  Pyrenees. 
While  no  manuscript  of  Justinian's  law  books  which  ante- 
dates the  ninth  century  has  been  discovered  in  France, 
there  were  conditions  in  the  Prankish  empire  which  suggest 
an  acquaintance  with  the  ecclesiastical  provisions  of  his  code. 

The  election  of  a  count  by  the  bishop  and  the  people,  the 
nomination  of  another  by  St.  Eligius  of  Tours,  suggest  the 
edicts  of  Honorius  and  Justinian  which  allowed  the  bishop 
to  participate  in  the  election  of  defcnsores  and  to  nominate 
civil  officers.^  The  capitulary  of  Chlothair  II  which  states 
that  in  the  absence  of  the  king  the  bishop  may  force  a 
judge  to  revise  his  unjust  sentence,  is  similar  in  spirit  to  the 
appeal  to  the  bishop  provided  for  in  the  Novels.^  A  similar 
comparison  might  be  made  in  the  exemptions  of  the  clergy 
from  the  secular  courts.  Chlothair's  edict  of  614  extended 
to  the  entire  clergy  the  right  of  bishops  to  have  criminal 
charges  against  them  heard  by  a  council  of  bishops,  while 
personal  actions  against  clerks  were  also  conceded  to  the 
episcopal  courts  by  the  same  edict — a  privilege  more  ex- 
plicitly guaranteed  in  the  Mantuan  capitulary  of  787.^ 

The  only  precedent  for  such  a  policy  is  that  of  Justinian's 
Novels.*      Moreover,  that  other  procedures  suggestive  of 

1  Greg.  Turon,  Hist.  Franconim,  v,  47 ;  Vita  St.  Eligii,  i,  32.  Cf.  C.  J., 
I.  55.  8;  Nov.,  cxiix,  i. 

2  Cloth.,  Pracceptio,  6  (Boretius,  p.  19)  ;  Nov.,  Ixxxvi. 
8  Boretius,  i,  p.  21,  4;  ibid.,  p.  196. 

*  Nov.,  cxxiii,  31,  makes  the  episcopal  court  a  court  of  first  instance 
for  all  personal  actions  against  clerks,  monks  and  deaconesses.  For 
criminal  actions,  cf.  ibid.,  viii,  p.  21. 


Il8  EDICTS  OF  THE  THEODOSIAN  CODE  [^22^ 

Justinian's  legislation  were  sometimes  used,  that  the  de- 
mands for  exemption  of  clerks  from  the  jurisdiction  of  the 
civil  courts  were  more  frequent  and  explicit  in  the  middle 
and  latter  part  of  the  sixth  century,  the  time  when  the  law 
books  and  Novels  were  published  in  the  west,  and  that  Jus- 
tinian's legislation  was  known  to  some  extent  in  the  king- 
dom of  Burgundy,  which  passed  under  Prankish  control  be- 
fore the  code  was  completed  or  the  Novels  were  published 
in  the  west — these  facts  seem  to  increase  the  probability 
of  the  knowledge  and  use  of  Justinian's  law  prior  to  the 
ninth  century/  And  in  that  century  the  Epitome  of  Julian 
was  well  known,  for  from  it  was  taken,  word  for  word,  the 
prohibition  in  the  capitularies  of  Lewis  the  Pious  of  the 
alienation  of  church  property,  except  in  exchange  for  royal 
favors.^ 

If  the  precedents  found  in  the  Justinian  law  were  effec- 
tive in  fixing  the  position  of  the  church  in  the  legislation  of 
the  Prankish  kings,  the  Breviary  of  Alaric.  as  already  stated, 
established  its  place  in  local  custom  and  usage.  Its  forty 
manuscripts,  nearly  all  found  in  Prankish  territory,  the 
frequent  occurence  of  portions  of  it  in  the  manuscripts  of 
other  collections  of  laws,  the  seven  epitomes  or  minor  codes 
for  which  it  is  the  source,  are  evidence  of  the  popularity  of 
the  Brez'iary  in  medi?eval  jurisprudence.^     Something  more 

1  A  council  of  794  directs  that  bishops  and  counts  together  decide 
cases  involving  clerks  and  laymen.  (Boretius,  i,  77).  Hincmar,  in  his 
letter  to  Charles  the  Bald,  mentions  a  method  by  which  the  king  ap- 
points judges  who,  with  the  bishops,  decide  mixed  cases.  £/>.,  40,  Cone. 
Aur.  (538),  c.  32;  ibid.  (541).  c.  20,  Cone.  Matiscon  (585),  c.  9  et  scq. 
Cf.  Nissel.  Dcr  Gcrichtstand  dcs  Clcrus  iin  frankischcn  Reich,  pp. 
112,  116;  Conrat,  Gcsch.  der  Quellen  und  Lit.  des  rom.  Rechts,  vol.  i, 
P-  Z7. 

2  Savigny,  vol.  ii,  p.  100. 

8  Cf.  Introduction  and  text  of  Haenel's  edition  and  the  Prolegomena 
to  Mommsen's  edition  of  the  Theodosian  code. 


229]  THE  INFLUENCE  OF  THE  LEGISLATION  119 

than  tradition  indicates  that  Charlemagne  recognized  and 
approved  it  as  a  source  of  justice,  for  the  statement  that 
"  it  was  received  and  placed  among  the  laws  by  Charles 
and  his  son  Pippin  "  coincides  with  their  recognition  and 
confirmation  of  folk  law,  by  which  each  nation  was  given 
the  privilege  of  amending  its  own  "  wherever  that  was  neces- 
sary and  committing  it  to  writing,  in  order  that  the  judge 
might  make  decisions  by  written  law  .  .  .  and  all  men,  poor 
and  rich,  have  justice  in  the  kingdom."  ^ 

The  ecclesiastical  legislation  of  the  Breviary  was  often 
the  precedent  for  laws  made  by  the  councils  and  consequently 
found  its  way  into  the  works  of  the  canonists.  The  restric- 
tion on  Jewish  traffic  in  Christian  slaves  was  more  than  once 
re-enacted.^  The  edict  of  Constantius  which  placed  criminal 
accusations  against  bishops  under  the  jurisdiction  of  the 
synod  of  bishops  was  cited  in  the  demand  for  the  immunity  of 
clerks  from  procedure  in  the  secular  courts,  as  was  also  the 
law  granting  clerks  exemption  from  taxation  and  public  bur- 
dens.^ The  right  of  representation  in  criminal  procedure 
given  the  bishops  by  Valentinian  was  extended  to  all  grades 
of  the  clergy  by  an  eighth  century  epitome  of  the  Breviary.^ 
The  rule  of  Honorius  on  celibacy  seems  to  have  been  the 

1  A  manuscript  of  the  Epitome  of  Aegidius,  one  of  the  compilations 
made  from  the  Breviary,  is  the  source  of  the  first  quotation  (Conrat, 
Ges.  d.  Q.  u.  L.,  p.  44)  ;  the  second  is  from  the  Annales  Laiirentientes, 
anno  802.  A  clause  of  a  lost  capitulary  also  says:  Constituta  ex  lege 
Salica,  Romana,  atque  Gombata  (Boretius,  i,  170).  Stobbe  regards  the 
passage  in  the  Annales  as  a  confirmation  of  folk-law.  (Geschichte  der 
deutschen  Rechtsquellen,  Bd.  i,  p.  20.)     Likewise  Conrat,  p.  44,  n.  4. 

2  Cone.  Aurel.  (538),  13;  (54i)  30,  31;  Matiscon  (581),  16;  Ben. 
Diacon.,  iii,  286;  Burch.  Worm.,  Decret.,  iii,  90;  Ivo  Chart,  i,  284;  cf. 
C.  Th.,  xvi,  I,  4  (Lex  Romana). 

3  Aurel  (541),  20;  Matiscon  (585),  9;  Paris  (614),  4;  Ben.  Diac.,  iii, 
284;  Ps.  Isid,  Ep.,  Gains.  Cf.  C.  Th.,  xvi,  i,  2  {Lex  Rofnana)  ;  Ben. 
Diac,  iii,  185.     Cf.  C.  Th.,  xvi,  i.  i   {Lex  Romana). 

*  Nov.  Val.  Ill,  12 ;  Epit.  Monach. 


I20  EDICTS  OF  THE  THEODOSIAN  CODE  [230 

source  for  similar  legislation  of  numerous  councils,  while 
the  laws  regarding  heresy  and  apostasy  were  also  known, 
but  were  not  so  frequently  cited. ^ 

It  was  from  the  Breviary  also  that  the  ecclesiastical  au- 
thorities derived  many  of  those  legal  principles  which  gave 
the  canon  law  its  distinctive  character  as  a  system  of  justice. 
The  rules  that  the  accuser  in  a  criminal  action  who  fails 
to  prove  his  charge  must  suffer  the  penalty  involved,  that 
those  accused  of  crime  and  not  proved  innocent  can  not  give 
testimony  in  a  criminal  process,  that  the  judge  can  not 
examine  until  a  formal  accusation  has  been  made,  and  the 
extension  of  the  conception  of  crime  from  physical  injury 
to  libel — these  principles  of  the  canon  law  have  their  source 
in  the  Breviary  of  Alaric.^  They  illustrate  how  direct  was 
the  transition  from  the  later  Roman  to  the  ecclesiastical 
justice  of  the  middle  ages,  and,  when  compared  with  the 
contemporary  legal  ideals  of  the  Germanic  nations,  they  ex- 
plain the  popularity  of  the  court  Christian.  Indeed  the 
references  to  the  sixteenth  book  of  the  Theodosian  code  by 
the  canonists  are  far  less  frequent  than  to  those  titles  of  the 
ninth  book  and  the  portions  of  the  Sentences  of  Paul  which 
treat  of  evidence,  procedure  and  appeal — a  fact  that  indi- 
cates that  the  chief  concern  of  the  church  in  the  early  middle 
ages  was  not  the  maintenance  of  ecclesiastical  privileges, 
but  the  work  of  directing  the  varied  social  activities  of 
mankind. 

1  Loning,  Bd.  ii,  p.  323 ;  Ben.  Diac,  iii,  188,  287 ;  Ps.  Isid.,  Ep.,  Ana- 
lect,  ii;  Ep.,  Gaius;  Lex  Bav.,  i,  13,  art.  2. 

-Ben.  Diac,  iii,   164;   Burchard,  vol.  i,  p.   164;  Ivo  Pann.,  iv,  iii; 
Ivo  Chart.,  xvi,  248.    It  is  interesting  to  notice  that  Gratian  was  not . 
acquainted  with  the  Breviary,  but  he  was  familiar  with  its  legislation 
through  the  acts  of  the  councils.     There  is  also  no  evidence  of  use  of 
the  Breviary  by  the  Popes. 


BIBLIOQRAPHY 


The  principal  authorities  used  in  the  preparation  of  this  monograph 
are  here  given.  From  them  may  be  derived  a  wider  and  more  minute 
acquaintance  with  the  extensive  literature  which  treats  of  ecclesiastical 
and  civil  problems  in  the  Roman  Empire. 

I.  Laws 
Breviariiwi  Alaricianum  (Conrat).     Leipzig,  1903. 
Codex  Theodosianns   (Haenel).      Berlin,  1842.      (Vol.  ii  of  Bocking's 

Corpus  Juris  Romani  Anie-Justiniani.) 
Codex  Thcodosianus  (Godefroy).    Lyons,  1665. 
Codex  Justinianus  (Kriegel). 

Corpus  Legum  Ante-Justinianum  (Haenel).     Leipzig,  1857. 
Lex  Romana  Visigothorum  (Haenel).    Leipzig,  1848. 
Leges   Visigothormn    (Zeumer).      Hanover,    1902.      {Mon.    Gem.   Hist. 

Legum,  sectio  i.) 
Novellae,   Constitutioncs   Impcratorum   Thcodosii  II,    Valentinian    III, 

etc.     1844.     (Vol.  iii  of  Bocking's  Corpus  Juris  Ante  Justiniani.) 
Novellae  Justiniani.     Berlin,  1899.     (Vol.  iii  of  Corpus  Juris  Civilis,  ed. 

Mommsen,  Kruger,  etc.) 
Theodosiani  Libri  XVI  (Mommsen  and  Meyer).     Berlin,  1905. 

n.  Contemporary  Historians  ^ 
Eusebius,  Historia  Ecclcsiastica. 
Eusebius,  Vita  Ecclcsiastica. 
Rufinus,  Historia  Ecclcsiastica. 
Socrates,  Historia  Ecclcsiastica. 
Sozomenus,  Historia  Ecclcsiastica. 
Theodoretus,  Historia  Ecclcsiastica. 

111.  Modern  Literature  and  Criticism 
Allard,  Lc  Christianisme  ct  I'empirc  romaine.     Paris,  1898. 

1  The  editions  of  these  authors  embodied  in  Migne's  Patrologia  have 
been  generally  followed.  Use  has  also  been  made  of  translations  in  the 
Library  of  Nicene  and  Post  Nicene  Fathers. 

231]  121 


122  BIBLIOGRAPHY  [232 

Bury,  Later  Roman  Empire.     London  and  New  York,  1899. 

Conrat,  Geschichle  der  Quellen  unci  Litcratur  des  romischen  Rechts  im 

friiheren  Mittelaltcr.  Vol.  i.  Leipzig,  1891. 
Dahn,  Konige  der  Germanen.  Wurtzburg,  1866. 
Diehl,  Etudes  sur  I' administration  bysantique  dans  I'exarchat  de  Ra- 

venne.     1888. 
Dill,  Roman  Society  in  the  Last  Century  in  the  West.     New  York,  1898. 
Esmein,  Cours  clcmentaire  d'histoire  du  droit  frangais.     Paris,  1895. 
Goyau,  Chronologic  de  I'empire  roniaine.     Paris,  1891. 
Harnack,  History  of  Dogma  (7  vols.).     Boston,  1897-1900. 
Hatch,  Organization  of  the  Early  Christian  Churches.     Oxford,  1881. 
Hefele,  Conciliengeschichte  (Bd.  i,  ii).     1873-1875. 
Kriiger,  Geschichte  der  Quellen  und  Literatur  des  romischen  Rechts. 

Leipzig,  1888. 
Langen,  Geschichte  der  romischen  Kirche  bis  sum  PontiUkate  Leo  I. 

Leipzig,  1888. 
Loning,  Geschichte  des  deuischen  Kirchenrechts.     Strassburg,  1878. 
Maassen,  Geschichte  der  Quellen  und  Literatur  des  canonischen  Rechts 

im  Abendlande  (vol.  i).     Gratz,  1870. 
Matthias,  Die  Entwickelung  des  romischen  Schiedsgerichts.      Rostock, 

1888. 
Nissl,  Der  Gerichtstand  des  Clerus  im  frdnkischen  Reich.      Innsbruck, 

1886. 
Neues  Archiv.       (Gesellschaft    fiir   altere    Deutsche    Geschichtskunde). 

Bds.  xxiii,  xxiv,  xxv,  xxvi. 
Rauschen,  Jahrbilcher  der  christlichen  Kirche  unter  dem  Kaiser  Theo- 

dosius  dem  Grossen.     Freiburg,  1897. 
Richter,  Das  west-romische  Reich  besonders  unter  den  Kaisern  Gra- 

tian,  Valentinian  II  und  Maximus.     Berlin,  1865. 
Riffel,  Geschichtliche  Darstellung  der  Verhdltnissen  zwischen  Kirche  und 

Staat  bis  auf  Justinian  I.     Mainz,  1836. 
Schiller,  Geschichte  der  romischen  Kaiserzeit.     Gotha,  1887. 
Schultze,  Geschichte  des  Untergangs  des  romischen  Heidenthums.    Jena, 

1887. 
Viollet,  Histoire  des  institutions  politiques  de  la  France  (vol.  i).     Paris, 

1890. 
Zeitschrift  fUr  Kirchengeschichte. 


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